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Ohio Oil Co. v. Yacktman





APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Ohio Oil Company, plaintiff, brought an action for specific performance against Victor Yacktman, and other defendants, predicated upon an option to purchase provision in a lease between the parties. Finding no material contested issues of fact, the trial court granted plaintiff's motion for summary judgment. Pursuant thereto, specific performance of the provisions of a leasing agreement entered into by these parties, together with costs, was decreed in favor of plaintiff. In accordance with this decree, defendants were directed to convey certain realty to plaintiff in compliance with plaintiff's exercise of an option to purchase granted to it under the contract.

The contract in question was entered into on or about June 15, 1960, by plaintiff as lessee and Chicago Title & Trust Company, acting not in an individual capacity, but as trustee of a trust with Victor Yacktman and his wife, Pauline, as beneficiaries. Under this contract, certain realty was leased to plaintiff for a term of 15 years, with plaintiff granted the additional right to extend the lease for two periods of five years each. Pursuant to an option to purchase clause contained in the contract, the interpretation of which was the central issue confronting the trial court, plaintiff on December 19, 1973, sent notice to Mr. and Mrs. Yacktman of its exercise of this option. Upon defendants' refusal to convey the premises to plaintiff, plaintiff commenced this action for specific performance, joining Mr. and Mrs. Yachtman and Chicago Title & Trust Company as defendants.

Since an analysis of paragraph 15 of the contract containing the option to purchase clause is essential to this appeal, this paragraph will be set out in its entirety:

"15. OPTION TO PURCHASE: In the event LESSOR receives a bona fide offer to purchase the premises during the term of this lease, or any extension thereof, and desires to accept same, LESSEE shall have the first right and option to purchase said premises at the same price and upon the same terms and conditions as offered by any such prospective purchaser. Immediately upon receiving any such offer to purchase LESSOR shall notify LESSEE in writing, setting forth the name and address of the prospective purchaser and the full details of such offer. LESSEE shall have a period of twenty (20) days after receipt of said notice in which to notify LESSOR of its election to purchase on the terms contained in said bona fide offer.

15a. In the event LESSEE elects to purchase, LESSOR will furnish forthwith a complete abstract of merchantable title certified to date by a reliable attorney or abstract company, or a certificate of title insurance issued by The Chicago Title & Trust Company satisfactory to LESSEE, showing a good and merchantable title in LESSOR, free and clear of all taxes, liens and encumbrances, except such as LESSEE may have expressly agree to assume. LESSEE shall have a resonable [sic] time thereafter to examine the evidence of LESSOR'S title, and if such title is found to be acceptable, LESSOR agrees to convey title to said premises to LESSEE by general warranty deed, with release of dower, if any.

15b. In addition to the Option mentioned in Paragraph 15, LESSOR hereby grants and gives unto LESSEE the first right and option to purchase the premises on (January 1, 1965, and during the balance of the year of 1965 for $62,500.00; during 1966 for $63,125.00; during 1967 for $63,756.00; during 1968 for $64,394.00; during 1969 for $65,038.00; during 1970 for $65,688.00; during 1971 for $66,345.00; during 1972 for $67,008.00; during 1973 for $67,679.00; during 1974 for $68,355.00; and during 1975 for $69,039.00.) Should LESSEE exercise said option, it will notify LESSOR in writing, and in such event paragraph 15a shall become applicable to said transaction.

15c. Said first right and option and said option to purchase shall be additional consideration for said rents and covenants to be paid and performed by LESSEE, and shall be a condition thereto." (Emphasis added.)

When ruling upon plaintiff's motion for summary judgment, the trial court had before it the following pleadings and documents: plaintiff's complaint for specific performance with a copy of both the lease and the letter of notice of plaintiff's exercise of the option to purchase attached thereto; defendants' amended answer to plaintiff's complaint; plaintiff's motion for summary judgment, supported by affidavit; and defendants' reply to plaintiff's motion, without counteraffidavit. In addition, defendants filed two affidavits to verify a portion of their amended answer and a motion for discovery with a supporting affidavit, but our examination of these pleadings discloses that they would have no bearing on the trial court's ruling on plaintiff's motion, rendering further consideration of them unnecessary.

By its complaint, plaintiff alleged, inter alia, the existence of the leasing agreement entered into by the parties on or about June 15, 1960; that pursuant to paragraph 15b of the contract, plaintiff exercised its option to purchase the demised premises; that notice of this exercise was sent to the Yacktmans by certified mail dated December 19, 1973; that defendants wilfully failed to perform their obligations under the option clause; and that plaintiff was without an adequate remedy at law.

By their amended answer, defendants denied most of the allegations contained in the complaint and stated, inter alia, that no option to purchase was granted plaintiff under paragraph 15b of the lease, but rather that paragraph 15 and the subparagraphs thereto merely granted plaintiff a conditional option to purchase the premises. Defendants further denied that the letter dated December 19, 1973, had the effect of exercising any option which may have been available to plaintiff.

In response to plaintiff's motion for summary judgment which was supported by the affidavit of plaintiff's real estate representative, defendants stated, inter alia, that plaintiff was only granted a right of first refusal to purchase the premises in the event defendants received and desired to accept a bona fide offer from a third party to purchase the real estate; that mutuality of contract was lacking because defendants did not receive consideration for an unrestricted option to purchase; and that in any event, plaintiff contracted away its right to bring suit for specific performance.

• 1 From the action of the trial court granting plaintiff's motion for summary judgment and entering a decree for specific performance in favor of plaintiff, defendants present two principal issues for our consideration: whether the pleadings and other documents before the trial court raised a genuine issue of fact such that the granting of summary judgment was precluded as a matter of law, and whether plaintiff was entitled to a decree of specific performance. Defendants also contend that plaintiff's intended use of the premises is restricted by the terms of the contract, that plaintiff contracted away its right to sue on the contract, that an alleged conflict of interest of plaintiff's attorney was a proper subject for discovery by defendants, and that plaintiff's purported exercise of the option failed to conform with the express terms of the contract. *fn1

A motion for summary judgment is properly granted when

"[T]he pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a ...

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