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Casati v. Aero Marine Management Co.





APPEAL from the Circuit Court of Cook County; the Hon. MINOR K. WILSON, Judge, presiding.


Mr. JUSTICE DOWNING delivered the opinion of the court:

This appeal involves an agreement to pay a broker's commission of $46,000 for producing an alleged unconditional offer to buy a building which would yield the seller a profit of $350,000. Plaintiff, Roland E. Casati, was a former officer and director of defendant, Aero Marine Management Company, Inc. (Aero). The circuit court, after a bench trial, entered judgment in favor of plaintiff.

On appeal the following issues are considered: (1) whether the finding that plaintiff procured an unconditional offer was against the manifest weight of the evidence, and (2) whether, if the finding was erroneous, plaintiff is nonetheless entitled to recovery on the basis of an anticipatory breach by defendants.

Plaintiff filed a complaint alleging an agreement was created on May 29, 1968, between Heritage Insurance Co. of America (Heritage) and plaintiff to supervise the construction of the Heritage Building (Building) in Lincolnwood, Illinois, to solicit prospective tenants for a certain set compensation, and, additionally, to solicit buyers for the Building entitling plaintiff to a "bonus." The relevant portion of the agreement, which is addressed to plaintiff, reads as follows:

"Sale of Building: You shall solicit, in a manner consistent with your judgment, the sale of the Building to prospective buyers, and all such sales or offers to purchase or sell, shall be subject to the approval of Heritage. In the event you shall have submitted an unconditional offer in writing with not less than forty-eight hours to accept, which offer shall be sufficient to allow a profit to Heritage of not less than $350,000 before closing costs, pro-rations and the bonus agreed to be paid to you, then you shall be deemed to have earned the sale bonus herein agreed to be paid to you whether such offer is accepted or not, and such bonus shall be paid within twenty days after the date such offer is submitted, if not accepted by Heritage."

The complaint further alleges the Building was sold to Aero, Heritage's parent company, after an agreement between Aero and plaintiff was entered into on November 26, 1968. By this agreement, plaintiff waived any rights to a bonus deriving from this sale in exchange for Aero's continuing to employ plaintiff under the May 29 agreement. The complaint further alleges plaintiff solicited prospective buyers including LaSalle National Insurance Co. (LaSalle) and submitted a written unconditional offer from LaSalle sufficient, pursuant to plaintiff's contract, to allow a profit of $350,000. The complaint goes on to assert LaSalle was a purchaser, ready, willing and able and that Aero became liable to plaintiff for a bonus of $46,000. In the complaint, just prior to the prayer for relief, plaintiff sets forth, in paragraph 9, an "alternative" theory that defendants anticipatorily breached plaintiff's "exclusive agency" to sell the Building as created by the May 29 and November 26 agreements. Defendants, in an amended answer, denied the allegations in paragraph 9 of the complaint.

At trial, defendants filed three motions in limine. One sought to exclude evidence on the issue of anticipatory breach on grounds plaintiff had not set forth his two causes of action in separate counts as required by the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 33(2)). A second sought judgment on the pleadings on this ground. A third sought to exclude parol evidence on the meaning of "unconditional" since no ambiguity had been pleaded. So far as we can determine from the record, the court ruled only on the motion in limine relating to parole evidence, denying that motion. The evidence presented by the parties was limited solely to the unconditional offer issue.

Limiting ourselves to the facts pertinent to our resolution of this appeal, we consider the following evidence. A major portion of the trial was devoted to establishing the completion date of the Building and its cost as of that date in order to determine whether LaSalle's purported offer of $1,350,000 would allow Aero the required margin of profit of $350,000. A letter from Vincent Giacinto, the president of Aero, to the New York Life Insurance Co., the mortgagee of the Building, asserted that the Building was completed, including office space, on October 31, 1969. The stipulated exhibit indicates that the cost of the Building on that date was $943,457.51, including the cost of the land.

Offers of proof were made by various witnesses as to the meaning of "unconditional" in the contract. These witnesses alleged that, in the May 28, 1968, meeting of the board of directors of Heritage, at which this contract was discussed and approved, "unconditional" was inserted to obtain an "all cash offer," i.e., one without financing. The court did not admit any of these offers, stating twice it saw nothing ambiguous about the term "unconditional," although in its findings the court did state that the letter constituted a "cash offer." The minutes of this meeting were, however, admitted into evidence and state that the word "unconditional" was inserted "to describe any written offer which might be received which would be sufficient to allow a profit to Heritage of not less than $350,000 * * *."

Documents admitted into evidence included the letter from LaSalle containing the purported offer, an attorney's letter to the president of Aero advising him that LaSalle's letter did not constitute an offer to purchase which was presented to the directors of Aero at their January 22, 1969, meeting, the minutes of the January 22 meeting at which the purported offer was rejected by Aero's board of directors, and Aero's letter of rejection to LaSalle. LaSalle's letter containing the purported offer initially stated plaintiff had presented the Building to them for purchase and then set forth their knowledge of the details of ownership and construction. The letter then advised Aero that LaSalle was "willing to purchase said real estate and improvements upon completion of the construction work (except for completion of certain tenants' work for space not then leased) at a price of $1,350,000. Tenants' work which comes within said purchase price will be completed after closing as space is leased." The letter continues on to require Aero to assign or cause to be assigned the benefits of a lease with Commonwealth Edison for parking space behind the Building and stated it was willing to negotiate a lease in the Building for Heritage as required by its mortgage agreement with New York Life Insurance Co. or substitute itself for Heritage as a tenant in the required space. Further, LaSalle "anticipated" the Building would be delivered unoccupied, that guarantees and warranties would be made available to LaSalle, and that sale commissions would be paid by Aero. The letter then stated:

"If the foregoing terms are acceptable to you, please notify the undersigned [the president of LaSalle] and we will immediately instruct our counsel to meet with you or your counsel, as you shall direct, for the purpose of drafting a full and complete contract acceptable to both parties."

Terms for payment in escrow upon execution were then specified and a closing paragraph extended LaSalle's "complete cooperation in furthering the transaction with a view towards as early a consummation as possible" requesting a response within three days.

The minutes of the January 22 meeting of Aero's board of directors disclose that a resolution to sell the Building to LaSalle in accord with their purported offer was defeated, a resolution stating the letter did not constitute an "unconditional offer" and therefore should be rejected was adopted, and that a proposed amendment to this latter resolution authorizing plaintiff to pursue LaSalle to see if an unconditional offer could be procured was defeated. Two motions, one that plaintiff be instructed not to contact LaSalle further and one that the Building not be sold at the present time, were both withdrawn. Plaintiff's resolution that LaSalle be informed in writing that Aero rejected their purported offer was passed and LaSalle was so informed.

Plaintiff made offers of proof that at the January 22 meeting the corporation attorney had warned the directors against including in the minutes their intention of withdrawing the Building from sale, which advice was, according to the offers, accepted. None of these offers were admitted into evidence. Defendants' attorney, however, in the hearing on their motion for summary judgment admitted several times that the Building was withdrawn from "the market," presumably in ...

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