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Cory v. Minton

OPINION FILED MAY 17, 1977.

JOHN R. CORY ET AL., PLAINTIFFS-APPELLEES,

v.

BETTY E. MINTON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiffs, John R. Cory and Mildred Ann Cory, brought an action pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57.1), seeking to adjudicate the rights of the parties with respect to certain real property occupied by defendants, Betty E. Minton and Rex E. Minton, and, further requesting the court to find that plaintiffs were entitled to occupy said premises. Defendants appeared and filed an answer and counterclaim through which they alleged that they took possession of the disputed premises pursuant to a written agreement and lease in which plaintiffs sold their beauty shop business to defendants and leased them the premises upon which the business had been conducted. Plaintiffs thereafter moved for, and were granted, summary judgment. Defendants' motion to vacate that judgment was denied and from entry of that order defendants currently appeal.

The sole issue properly presented for review concerns whether the trial court erred in awarding plaintiffs summary judgment, specifically, whether the pleadings, affidavits and exhibits on file serve to create a genuine issue as to a material fact so as to preclude plaintiffs' entitlement to judgment as a matter of law. Ill. Rev. Stat. 1973, ch. 110, par. 57.

A review of the record indicates that plaintiffs are the owners of a commercial property known as 4405 and 4407 Butterfield Road in Bellwood, Illinois, upon which is situated a two-storied building. This building is internally divided along its lateral axis such that the ground floor is occupied by two adjacent stores of approximately equal floor space and whose entrances front on 4405 and 4407 Butterfield Road, respectively. These two commercial units are connected by means of a doorway constructed in their common wall so as to provide a means of access between the two units. The unit whose entrance fronts on 4405 Butterfield Road is further subdivided into two similarly connected front and rear portions. The aforementioned access between 4405 and 4407 Butterfield Road is provided through this rear portion and it is this area which forms the basis of the instant dispute.

Prior to October of 1972, plaintiffs were the owners and operators of a beauty shop known as "The Ming Tree Salon of Beauty" the entrance of which was at 4407 Butterfield Road. Thereafter, on October 30, 1972, plaintiffs entered into a written agreement with defendants whereby plaintiffs sold to defendants their beauty shop business, together with all supplies, fixtures and good will for $19,400.

Paragraph 1 of the purchase agreement states as follows:

"1. SALE OF BUSINESS. The Seller shall sell and the Buyer shall buy, free from all liabilities and encumbrances, the beauty shop business now being conducted by the Seller at the store premises known as 4407 Butterfield Road, Bellwood, Illinois * * *."

Paragraph 4 of this agreement states as follows:

"4. LEASE. The Seller as lessor shall lease the store premises to the buyer as lessee by written lease * * *."

Paragraph 7 of this agreement further provides:

"7. REPRESENTATIONS AND COVENANT OF BUYER. The Buyer represents that he has examined the premises in which the business is now being conducted by the Seller * * *."

Pursuant to this agreement, the parties entered into a lease agreement for a term of three years, beginning November 8, 1972, and ending November 7, 1975. The granting clause of this agreement describes the premises so demised as "4407 Butterfield Road, Bellwood, Illinois."

Paragraph 4 of the lease is printed and provides:

"5. Lessee has examined and knows the condition of the Premises and has received the same in good order and repair, and acknowledges that no representations as to the condition and repair thereof, and no agreements or promises to decorate, alter, repair, or improve the Premises, have been made by Lessor or his ...


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