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Robbins v. Avara

APRIL 25, 1975.

GEORGE ROBBINS ET AL., PLAINTIFFS-APPELLEES,

v.

WILLIAM T. AVARA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 21, 1975.

Defendant appeals from a judgment by confession and the order confirming that judgment and from denial of his post-trial motion. He contends that: (1) the judgment is against the manifest weight of the evidence; (2) he should have been granted a new trial based upon newly discovered evidence, and (3) the liquidated damages clause in the sales contract he had entered into with plaintiffs was a penalty and their damages must be limited to $100.

On September 24, 1973, the trial court entered judgment by confession against defendant for $3780.83 including interest and attorney's fees. The judgment was based upon a $3500 cognovit note which defendant had executed on August 2, 1973. The words "Earnest Money, 127 N. Chase, Lombard, Illinois" are typed on the fact of the note, but the note does not indicate that it was made subject to or was governed by the terms of any real estate sales contract. On October 12, 1973, defendant filed his appearance.

On December 20, 1973, a trial was held. No report of these proceedings was made. However, although the trial judge did not certify a proposed report of proceedings prepared by defendant's counsel, he did prepare his own report of proceedings. This report indicates that the following pertinent evidence was adduced at the trial.

William T. Avara

He is the defendant in the instant matter and was called pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) He does not know whether the signature on the note was his; but he sent a telegram the day after he signed the note to get out of the deal because he was drunk. He was not sure whether he had sent two telegrams. The court on several occasions during the course of defendant's testimony asked defendant's counsel whether defendant was "competent to stand trial" and on each occasion counsel responded affirmatively.

Roger Wozniak

He is a salesman for Maple Realty and is entitled to a commission for the sale of the premises in question. He first met defendant 3 years ago when defendant purchased a home from him and he had talked to him several times since then, including once when defendant had cleaned his carpets. On August 1, 1973, defendant telephoned him and told him that he wished to purchase a home with the proceeds of an insurance settlement he was about to receive. He and defendant met on August 2, 1973. Defendant looked through the book of listings at the real estate office and chose five homes he wished to see. They then drove to see those homes. When they returned to the office, defendant signed the note and real estate contract. During the four or five hours they were together, no alcohol was consumed and defendant was sober.

After this testimony, plaintiffs rested their case and defendant's motion for dismissal of the suit was denied.

William T. Avara, on his own behalf

He was drunk at the time he signed the note and Wozniak had caused him to be drunk. He sent a telegram after signing the note saying that he had changed his mind; but the telegram was not produced.

Following this evidence, the court found defendant's testimony "not only not credible, but * * * in fact incredible * * *" and confirmed the judgment previously entered by confession.

On January 3, 1974, defendant filed a post-trial motion requesting that the judgment be vacated or that the court grant whatever other relief seems appropriate and alleging that: (1) defendant was mentally incompetent at the time he signed the note and contract due to alcohol; (2) plaintiff suffered no loss; (3) defendant was not a ready, willing and able purchaser; (4) defendant had been told he ...


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