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Grandview Dev. Co. v. Finley Enterprises





APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.


Rehearing denied April 25, 1977.

Plaintiffs Grandview Development Co., Inc., and Paul Fager appeal from an order of the Circuit Court of Will County, entered on October 10, 1975, in an equity action which was instituted to compel specific performance of a written contract for sale of real estate. The order appealed from required that plaintiffs pay defendant Finley Enterprises, Inc., the vendors under the real estate agreement, the sum of $37,154.64 as interest and the sum of $8,611.28 for tax payments and maintenance expenses incurred by defendant, and the sum of $762.75 as interest on the tax payments and maintenance expense. The further condition was made in such order that if the payments were not made, plaintiffs would be declared in default on the contract and the contract would be declared null and void.

An understanding of the nature of the proceedings requires a review of the facts as presented in the record. It appears that on October 29, 1969, plaintiffs and defendant entered into a contract for sale of real estate which provided that on or before February 15, 1970, the plaintiffs would purchase any two lots in Sugar Creek Highlands, a unit of real estate owned by defendant, and, also, provided that plaintiffs would, each month thereafter, purchase two or more lots in the same unit as defendant's property. The contract provided that, for each lot purchased, plaintiffs would pay to defendants the sum of $4,000 as the purchase price for the lot and the sum of $500 as security for plaintiffs' further performance under the contract. There was also a provision for a sum to be paid as a tap-on fee for sewer and water lines. There was further provision that after all lots in Sugar Creek Highlands had been purchased by plaintiffs, the contract provided that plaintiffs would purchase an additional 39 lots, comprising approximately 23.5 acres lying to the east of Sugar Creek Highlands. The sums paid by plaintiffs as security, accompanying the purchase of lots in Sugar Creek Highlands, were to be applied to the purchase price of that property. The contract also provided that time was of the essence of the agreement, and that in the event of a default by plaintiffs, all security deposits would be forfeited to defendant. There was also specific provision that defendant would deliver warranty deeds to plaintiffs for each lot when and as purchased.

By an amendment to the contract, on January 2, 1970, it was provided that plaintiffs could defer the purchase dates of any lot, required under the contract to be purchased in 1970 or 1971, by paying certain sums to defendant. It also provided that plaintiffs would take over and be responsible for the maintenance of the subdivision as of January 2, 1970. There were no provisions in either the original agreement or the amendment with respect to interest charges or rates.

On February 15, 1971, plaintiffs made payment under the contract in the amount of $10,300 for the purchase of two lots, and defendant delivered to plaintiffs deeds for those two lots. Each month thereafter, to and including June of 1971, the same procedure was followed. Although defendant accepted plaintiffs' tender of $10,300 in July 1971, defendant did not deliver the deeds to such lots covered by this payment.

By correspondence dated June 22, 1971, defendant notified plaintiffs that defendant elected to rescind, and declare null and void, the contract, for the alleged reasons that plaintiffs had been late in making payments and had failed to properly maintain the premises. This notice additionally (1) declared that all security deposits made by plaintiffs were forfeited as liquidated damages, (2) demanded payment of various additional sums to be paid by plaintiffs and (3) demanded that plaintiffs remove themselves from any of the properties not previously conveyed to plaintiffs.

On August 15, 1971, plaintiffs tendered payment for the month of August and defendant rejected such tender. Subsequently, and until November 1, 1971, negotiations were held in attempts to resolve the controversy between the parties. On November 3, 1971, plaintiffs filed a complaint for specific performance and declaratory judgment, and requested that the contract be declared in full force and effect and that defendant be ordered to perform the contract. Defendant filed an affirmative defense to the complaint, alleging that plaintiffs had materially breached the contract and also filed a motion for summary judgment, but apparently no action was taken on such motions.

On October 3, 1974, defendant filed an amended answer and countercomplaint, which apparently waived all previously alleged defaults of plaintiffs on the contract. The countercomplaint requested that the trial court order defendant to convey the property in question to plaintiffs, provided that plaintiffs first pay to defendant the sum of $244,647.39, which was the sum of the amounts which had come due to defendants under the contract, plus expenses incurred by defendant for maintenance and taxes and, also, plus interest at the rate of 5% per annum from the date the amounts became due or were incurred by defendant. On October 16, 1974, plaintiffs filed an answer to the countercomplaint denying that defendant was entitled to the sums due on the contract during the period of dispute and stated that the contract should be reinstated on a monthly basis, with the first payment being due on the 1st day of the month directed by the court, with subsequent payments following on the 1st day of each month thereafter. In support of this position, plaintiffs also filed a motion for judgment on the pleadings, on November 20, 1974, and requested that the court reinstate the contract on a monthly payment basis.

After the filing of various additional pleadings, the trial court entered a judgment order in the cause on October 10, 1975, to which we have referred. The court found that defendant had waived the alleged defaults of plaintiffs and had withdrawn its purported rescission of the contract and, also, that the controversy between the parties, although conducted in good faith by both parties, had created an equitable hardship on plaintiffs insofar as plaintiffs might be required to pay the balance of the purchase price at one time rather than in monthly installments. The trial court ordered that the contract between the parties was to remain in full force and effect and that the times of payment therein provided be extended for a period of 50 months, the time of the controversy, with interest on payments at 5% per annum from October 1, 1975, to be paid. The court's order further provided that defendant should have judgment as against plaintiffs, as we have noted, in the total sum of $46,528.67, which was principally the amount of interest due at 5% per annum on all payments required under the contract from the date due until October 1, 1975, and the amount expended as tax payments and maintenance by defendant during the controversy, together with interest on these tax payments and advances from the date paid until October 1, 1975. The court also ordered that the payment of the $46,528.67 judgment by plaintiffs was a condition precedent to defendant's continued performance under the contract.

On November 25, 1975, plaintiffs filed a notice of appeal from the trial court's order of October 10, 1975. The trial court thereafter, on December 19, 1975, entered an order finding that plaintiffs were in default in payments ordered to be made in the order of October 10, 1975, and, also, ordered therein that the contract of October 29, 1969, between the parties be null and void and of no effect.

On October 23, 1975, plaintiff Grandview had filed a motion for rehearing of the order of October 10, 1975, and therein requested that the trial court revise its order so as to condition the reinstatement of the contract upon the payment, by plaintiffs, to defendant of the sum of $46,528.67, and to delete from the order of October 10, 1975, the portion for judgment against plaintiffs for any sum whatsoever. This petition for rehearing was not granted. The sole issue presented for review on this appeal, as framed by plaintiff, is "whether the trial court's entry of judgment against the plaintiffs for $46,528.67 and refusal to modify or delete the same was supported by the evidence and law."

The sum entered as judgment against plaintiffs consisted principally of interest computed at the rate of 5% per annum on payments from the so-called due date and under the contract from October 1, 1975, and was in the sum of $37,154.64, which the court found that defendant was equitably entitled to. The balance of the amount included in the judgment was for $8,611.28 for tax payments and maintenance of the subdivision during the pendency of the action and interest on said amounts paid to October 2, 1975.

In considering the interest issue, the parties have referred to the provisions of the Interest Act in this State (Ill. Rev. Stat. ...

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