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Brown v. Whipple

ILLINOIS APPELLATE COURT — THIRD DISTRICT


JANUARY 31, 1974.

JAMES BROWN ET AL., PLAINTIFFS-APPELLEES,

v.

WALTER WHIPPLE, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Bureau County; the Hon. WILLIAM P. DENNY, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant-appellant Walter Whipple, from a judgment of the Circuit Court of Bureau County entered in favor of plaintiffs-appellees, James Brown and Richard Malmstrom.

Counts I and III of a four count complaint were based on fraud and alleged defendant bargained to buy plaintiffs' farming operations and in exchange an arrangement was set up whereby defendant agreed to sell plaintiffs his automobile and farm equipment business; that defendant with intent to deceive and defraud plaintiffs, fraudulently made false representations to plaintiffs upon which plaintiffs relied and plaintiffs were damaged as a result thereof. Counts II and IV alleged the parties entered an oral contract with defendant agreeing to purchase plaintiffs' farms in exchange for credit on the purchase of defendant's business; that plaintiffs performed the conditions of the contract and defendant refused to perform upon demand, as a result of which plaintiffs were injured. Sitting without a jury the trial court entered judgment for plaintiff Brown on Count I and for plaintiff Malmstrom on Count III but the judgment did not dispose of the claims in Counts II and IV. We note also that the trial court failed to make an express finding that there was no just reason for delaying appeal before deciding all the claims of the parties. Supreme Court Rule 304(a) (Ill. Rev. Stat., ch. 110A, par. 304(a)) provides that judgments determining fewer than all of the matters involved in an action shall not be appealable unless the trial court makes an express written finding that there is no just reason for delaying enforcement or appeal.

We find that the judgment is not appealable (Rubinson v. Pancoe, 54 Ill. App.2d 224, 203 N.E.2d 767) but express no opinion as to whether any "just reason" exists for an appeal prior to the determination of the remaining counts.

Accordingly, the appeal from the judgment of the Circuit Court of Bureau County is dismissed.

APPEAL DISMISSED.

SCOTT, P.J., and ALLOY, J., concur.

19740131

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