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Seaberg v. American Nat'l Bank & Trust Co.

OPINION FILED FEBRUARY 2, 1976.

GUY P. SEABERG ET AL., PLAINTIFFS-APPELLANTS,

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Guy P. Seaberg and Valerie Seaberg his wife (plaintiffs) brought an action against American National Bank & Trust Company of Chicago, not individually but as Trustee under Trust No. 22-22822, and Victor F. Ciardelli, designated in the complaint as its agent, for specific performance of an alleged contract for sale of real estate. Plaintiffs first and then the Trustee filed motions for summary judgment. The court found expressly that there was no genuine issue as to any material fact but denied the motion of plaintiffs and granted summary judgment for defendants, dismissing the suit with prejudice. At the same time, the court denied a motion by plaintiffs for leave to file an amended complaint. Plaintiffs appeal.

The contentions of the respective parties will have more significance if stated after a summary of the facts. We agree that the case presents no genuine issue of material fact. Able counsel for the parties have placed all of the pertinent facts before the court. The real estate involved is commonly referred to as 2201-2207 North Lincoln Avenue, in Chicago. Since sometime in 1969, plaintiffs have occupied a store upon the premises for business purposes. The tenancy has always been evidenced by written leases.

On May 1, 1972, a lease was entered into by the Trustee, as lessor, acting by Ciardelli as "its duly authorized agent" and plaintiffs as lessees. The lease demised premises described as first floor and basement at 2207 North Lincoln Avenue, in Chicago. The lease commenced May 1, 1972, and expired April 30, 1974. Appended to the lease is a rider:

"28. Lessor agrees that if the property being leased hereunder is put up for sale or trade, he shall notify Lessee in the event any potential purchaser submits a firm offer acceptable to Lessor, and shall grant Lessee the first option to purchase or trade for the property at comparable terms, or to refuse that option. In the event of refusal, if the property is not in fact sold or traded to the potential purchaser the option shall remain in full force and effect until such later date when sale or trade is actually effected to a later bidder, or Lessee. Lessee shall have 10 days from time of notification to accept the first option to purchase said building."

The last sentence of the rider was added by Ciardelli, printed by his own hand. The body of the lease and the rider were signed by Ciardelli without additional designation.

At all pertinent times, legal title to the property was vested in the Trustee. This was done by a deed in trust executed January 14, 1966. The trust is evidenced by an agreement of even date executed by the Trustee and by Ciardelli and his wife, Nancy. The trust agreement described the real estate legally and also as 2205 North Lincoln Avenue, in Chicago. The entire beneficial ownership of the trust is vested jointly in Ciardelli and his wife Nancy, who is not a party to this suit. Sole power of direction is vested in Ciardelli.

The trust agreement is upon the usual type of printed commercial form. It provides that the beneficiaries shall "have the full management of said real estate and control of the selling, renting and handling thereof, and any beneficiary or his or her agent shall handle the rents thereof and the proceeds of any sales of said property * * *. No beneficiaries hereunder shall have any authority to contract for or in the name of the Trustee or to bind the Trustee personally." The agreement provides for payment to the Trustee in accordance with "its regular schedule of fees for making deeds, mortgages, leases and/or other instruments * * *." As such agreements generally do, it provides that "the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said real estate and to manage and control * * *" the same. It provides that "no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds * * *."

During 1973, Ciardelli had conversations with two persons, one a tenant other than plaintiffs, concerning the possibility of sale of the property. During April of 1973, one of these persons visited Ciardelli and said that he would like to buy the building for $80,000 and would offer that sum. On April 26, 1973, Ciardelli sent a letter to plaintiff Guy P. Seaberg headed "RE: Purchase of 2201 North Lincoln Avenue." The letter, signed by Ciardelli and on his own stationery, was sent by certified mail. It stated:

"Pursuant to the Notice Provision of our Lease, please be advised that I have just received a bona fide offer of $80,000.00 for the sale of the building at 2201 North Lincoln Avenue.

Could you please advise within ten (10) days whether you are in a position to make a bona fide offer to match said amount?"

On May 4, 1973, Plaintiffs both signed and delivered to Ciardelli the following letter:

"In response to your letter dated 4/26/73, and pursuant to Paragraph 28 of the Rider to our lease, please be advised that we will exercise our first option to purchase the real estate and building at 2201-2207 N. Lincoln Avenue, including adjacent vacant property, for the offered amount of $80,000.00, and are prepared to enter into a Contract for Sale, subject to the usual prorations, limitations, and contingencies, at your earliest convenience."

On May 7, 1973, counsel for plaintiffs sent Ciardelli a letter advising that they had possession of the pertinent documents and that pursuant to their clients' notice they were "prepared to deposit the usual and customary earnest money with a mutually satisfactory escrowee, to effect a consummation of the sale to them." Upon rejection by Ciardelli, plaintiffs filed their suit on May 11, 1973. Later, on May 16, 1973, also by certified mail, Ciardelli sent Guy Seaberg another letter stating:

"Pursuant to the Notice Provision of our Lease after rejecting the other offers on the building, I just received a new offer of $85,000.00 for the sale of ...


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