APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
This is the second appeal in this case and arises out of a contract entered into by and between the plaintiffs-appellees-cross-appellants (hereinafter plaintiffs) and the defendant-appellant-cross-appellee, Oak Park Federal Savings and Loan Association (hereinafter Oak Park). The facts pertinent to the contract negotiations and formulation of the contract are sufficiently set forth in our prior decision, Yonan v. Oak Park Federal Savings and Loan Association, 4 Ill. App.3d 754, 281 N.E.2d 700 (1972), and need not be reiterated here. Suffice it to say that by the terms of the contract the plaintiffs were to exchange two pieces of real estate, one improved with a two-story building containing 4,500 square feet, for a parcel of land owned by Oak Park. Oak Park was to improve the parcel of land it was exchanging with a 6,000-square-foot store building. The first appeal involved whether or not a binding and enforceable contract had been entered into, and we held that the parties had entered into a contract that should be enforced. We remanded the case with directions to the trial judge, the Honorable Walter P. Dahl, to grant either specific performance of the contract or in the alternative to hear additional evidence regarding all of the plaintiffs' damages. The present controversy stems from the decree entered by the trial court on remand.
In its decree the trial court stated that it was appropriate to grant specific performance by ordering Oak Park to pay a sum equal to the present cost of constructing a building on the property it agreed to convey to the plaintiffs and the consequent exchange of this property improved with the new building for plaintiffs' two pieces of property. The trial court found the present cost (at the time of entry of the decree) of constructing a building within the specifications agreed upon by the parties to be $147,180. The decree went on to enumerate several terms and conditions under which the specific performance of the contract was to be carried out. However, these terms and conditions are not germane to the issues raised on appeal, and it is, therefore, unnecessary to set them forth.
As a threshold issue, Oak Park has asked this court to reconsider our decision on the first appeal in which we held that a binding and enforceable contract had been entered into by and between the plaintiffs and Oak Park. Oak Park maintains that our prior decision is plainly and palpably erroneous and that we should now hold that there was no meeting of the minds or that the letter of intent sent by the plaintiffs to Oak Park on May 8, 1963, was too indefinite and incomplete to be a contract. In the alternative, Oak Park contends that it was error for the trial court to grant specific performance and that if the plaintiffs have any rights arising from the letter of intent their remedy should be limited to damages.
The plaintiffs contend that the trial court erred in not ordering Oak Park to construct the building agreed upon and in any event that $147,800 is not the cost of constructing the building bargained for by the plaintiffs. The Yonan's maintain the trial court should have ordered Oak Park to pay $218,876 as the present cost of constructing the agreed upon building. In addition, plaintiffs have filed a cross-appeal and contend that the trial court erred in not granting them complete specific performance by compensating them for all of the loss they sustained due to Oak Park's breach of contract.
• 1 In regards to Oak Park's contention that our prior decision was plainly and palpably erroneous and that we should now reconsider it, we need only reiterate a well-established principle of law the doctrine of the law of the case. In Tribune Co. v. Emery Motor Livery Co., 338 Ill. 537, 170 N.E. 772 (1929), our supreme court stated at page 541:
"The second appeal in the same case, when the judgment of reversal and remandment on the first appeal covers the entire merits of the controversy, will bring before the court to review only the proceedings had in the cause subsequently to the remandment. (Walker v. Doane, 108 Ill. 236). This result follows necessarily from the fact that an appellate court is bound by its former final decision and judgment upon the same record. (Henning v. Eldridge, supra; Sanders v. Peck, 131 Ill. 407; Washburn & Moen Manf. Co. v. Chicago Galvanized Wire Fence Co., 119 Id. 30; Central Warehouse Co. v. Sargeant, 40 Ill. App. 438; Field v. Brokaw, Id. 371)."
In Weiland Tool & Manufacturing Co. v. Whitney, 100 Ill. App.2d 116, 241 N.E.2d 533 (1968), rev'd on other grounds, 44 Ill.2d 105, 251 N.E.2d 242 (1969), which was a second appeal, the counterplaintiff argued, inter alia, that the court's first decision was palpably in error as to certain matters of substantive law and that the court should re-examine the issues. The court stated at page 124:
"When there is an identity of particular issues, facts and evidence from the first to the second appeal, the decision of the former appeal is binding upon us on a second appeal, regardless of whether our former decision is right or wrong. Gillum v. Central Illinois Public Service Co., 250 Ill. App. 617."
The court in Weiland did recognize two exceptions to the doctrine of the law of the case. The first exception is when subsequent to the first appeal the supreme court makes a contrary ruling on the precise issues of law on which the appellate court had based its prior decision. The second exception allows a departure from the law-of-the-case doctrine and a finding that the prior decision was palpably erroneous, but only when the case has been remanded by the appellate court for a new trial of all the issues. The rationale for this exception is that the court would be reaching a different decision upon an appeal from a judgment entered upon a second trial. In the case presently before us, neither of these exceptions is applicable. It is, therefore, abundantly clear that when a reviewing court reverses and remands an order, judgment or decree with specific instructions as to the action to be taken by the trial court, the only question properly presented on a subsequent appeal is whether the trial court followed the mandate of the reviewing court. People v. National Builders Bank, 12 Ill.2d 473, 147 N.E.2d 42 (1957); People ex rel. John Maeras v. Chicago, Burlington & Quincy R.R. Co., 36 Ill.2d 585, 224 N.E.2d 248 (1967).
• 2 In regards to whether a binding and enforceable contract had been entered into the issues, facts and evidence are identical from the first appeal in this case to the appeal presently before us. Neither of the two exceptions to the doctrine of the law of the case are applicable and therefore, we are precluded by that doctrine from reconsidering our prior decision. In any event, it is our opinion that our former decision was not plainly and palpably erroneous but rather was based upon sound principles of law. Therefore, we shall not turn to the only question properly before us, which is whether or not the trial court on remand correctly followed the mandate of this court.
As previously stated, the trial court's decree ordered Oak Park to pay the plaintiffs $147,180 as the present cost (at the time the decree was rendered) of constructing the building and that the parties exchange their respective properties. Oak Park maintains that it is error to enforce a contract for the construction of a building where a great many details have not been agreed upon and that it is equally inappropriate under such circumstances to order the payment of money for the construction of the building in lieu of the construction itself. Oak Park contends that until the nature and quality of the details have been selected, it is impossible to build a building or to determine the cost of constructing a building. In addition, Oak Park maintains that the trial court's decree is palpably unfair to it in that the plaintiffs are receiving a lot improved with a new building but Oak Park is obtaining a lot with a building on it that is now 14 years old. As previously stated, the plaintiffs contend that the trial court should have ordered Oak Park to construct the building agreed upon or should have ordered Oak Park to pay $218,876 as the present cost of constructing the building.
• 3 We view the decree of the trial court in this case as being a grant of specific performance as to part of the contract (the exchange of real estate) and an award of compensatory damages as to the remainder of the contract (the construction of the building). In 5A Corbin on Contracts § 1160, at 185 (1964), it is said:
"In some cases specific performance may be an available remedy as to part of a promised performance and not be available as to the remainder. This may be because such remainder is impossible of performance or is of such a character that specific enforcement would be too difficult or would be against the public interest. In these cases the court may decree specific ...