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Thompson v. Howard

SEPTEMBER 15, 1975.

MONTREAL THOMPSON ET AL., PLAINTIFFS-APPELLANTS,

v.

W.S. HOWARD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. ALBERT PUCCI, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 26, 1975.

This appeal arises from the sale of a meat processing or packing plant in Wyoming, Illinois, to the plaintiffs, Montreal and Angeline Thompson. The plaintiffs have taken this appeal from an order entered by the circuit court of Peoria County, granting the motions of the defendants, W.S. Howard and Joseph V. Toohill, to dismiss the amended complaint. The order made no provision for further amendments; judgment was entered for the defendants against the plaintiffs. The issues raised by this appeal concern the sufficiency of the amended complaint.

In order to treat the issues raised, it is necessary to set forth the background to this litigation.

On November 21, 1968, the plaintiffs, relying upon diversity jurisdiction, filed a complaint in the United States District Court for the Southern District of Illinois against W.S. Howard and Faye E. Howard. The plaintiffs sought damages allegedly resulting from breach of warranty and misrepresentation in connection with a conveyance of real estate from defendants to plaintiffs. Toohill was not made a party defendant in this action.

The federal complaint alleged that on December 2, 1957, Stark Locker Service, as vendor, entered into an "Agreement for Sale of Real Estate" with Joseph V. Toohill and Juanita M. Toohill, as vendee, which among other things provided as follows:

"(13) It is mutually agreed * * * that the covenants and agreements herein contained shall extend to and be obligatory upon the * * * assigns of the respective parties * * * As a part of this agreement vendee agrees to slaughter all of vendor's requirements and shall continue customer pick up service * * * Vendee further agrees not to operate * * * any locker business or do cutting or wrapping for retail food refrigeration trade."

This agreement for sale was executed by a warranty deed, dated December 6, 1957. The deed contained no reference to the covenants and restrictions stated in the agreement. The agreement was not recorded until March 6, 1964.

In 1958, the Toohills allegedly leased the real estate and plant to Wyoming Packing Company which thereafter used the premises as a locker business and for cutting and wrapping in connection with the retail food refrigeration trade.

On June 6, 1960, the Toohills conveyed the real estate and improvements by warranty deed to W.S. Howard and Faye E. Howard. This deed was recorded on July 6, 1960, but made no mention of the restrictive covenant set forth above.

On or about July 8, 1960, the Howards conveyed the property to the Thompsons by statutory warranty deed. The deed was prepared by Toohill, an attorney, who was also the Howards' predecessor in title. Neither the agreement to purchase nor the deed contained any reference to the restrictive covenant, which at that time remained unrecorded. Furthermore, the Thompsons alleged that although the Howards and their attorney, Toohill, knew of the unrecorded restrictions, it was not disclosed to them in any manner.

In the Federal complaint the Thompsons also alleged that in the course of the negotiations leading up to the sale of the property, W.S. Howard represented the business operations as follows:

"* * * (M)y packing plant, (and) like I told you, I just spent over $25,000 for additional cooler space to expand my retail department. (and) We have a complete slaughtering, processing, retailing, frozen food, cold storage, you name it, we got it here at this plant. (and)

To let you know how much faith I have in the plant, if we can get together, I want to lease the packing plant back for a year, we can discuss the terms later. I would like the ...


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