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Kaplan v. Keith

OPINION FILED MAY 25, 1978.

CHARLES KAPLAN ET AL., PLAINTIFFS-APPELLANTS,

v.

SEYMOUR KEITH ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal of an order of the circuit court of Cook County sustaining a motion to dismiss a complaint. The complaint was brought for damages under a real estate sale contract, and to set aside a release agreement signed by Charles and Judy Kaplan (hereinafter called "plaintiffs"). This agreement was incorporated into the closing statement of the sale and released the sellers, Seymour and Ruth Keith (hereinafter called "defendants"), from liability for repair or replacement of any damages to the property, occurring during the period of time between the execution of the real estate sale contract and the closing.

The issues presented for review are (1) whether the court below erred in granting the defendants' motion to dismiss, by finding no set of facts could be proved under the pleadings which would establish duress, (2) whether the real estate sale contract and the release agreement are severable, thereby allowing for rescission of only the release agreement, and (3) whether the circuit court in the chancery division erroneously transferred the cause to the law division.

• 1 The facts of the transaction are substantially taken from the allegations in the plaintiffs' amended complaint, and are admitted by the defendants for purposes of the motion to dismiss (see People v. Sterling (1934), 357 Ill. 354, 192 N.E. 229; Phillips Construction Co. v. Muscarello (1976), 42 Ill. App.3d 151, 355 N.E.2d 567).

On January 29, 1975, the plaintiffs entered into a contract to purchase the defendants' home. Paragraph 11 of that contract provides:

"Seller agrees to deliver possession of the real estate in the same condition as it is at the date of this contract, ordinary wear and tear excepted."

The closing of the sale was scheduled for July 21, 1975. The plaintiffs learned shortly before the closing that various items which were purchased with the house had been removed by the defendants and portions of the house had been damaged. When these facts were called to the defendants' attention, they refused to close the sale unless they were given a release. The plaintiffs executed the release, as a clause added to the closing statement, and were given a $500 credit against the purchase price. The plaintiffs had no alternative place to move as they had sold their house and had to give up possession on or about the date set for closing. After moving into the house they purchased from the defendants, the plaintiffs learned other items included in the purchase were defective, contrary to prior representations made by the defendants.

The plaintiffs filed an action to set aside the release and for damages. The defendants filed a motion to dismiss. The original complaint was stricken by the court with leave given to file an amended complaint. The plaintiffs thereupon filed an amended complaint. The defendants filed another motion to dismiss, on the basis the plaintiffs' claim was barred because of a valid release, and this motion was sustained with prejudice. The plaintiffs now appeal this order of dismissal.

It is well established in Illinois procedural law, a motion to dismiss admits all facts well pleaded and a cause of action should not be dismissed on the pleadings unless it clearly appears no set of facts can be proved under the pleadings which will entitle the plaintiffs to recover (Country Mutual Insurance Co. v. Drendel (1969), 116 Ill. App.2d 466, 252 N.E.2d 757; White Way Sign & Maintenance Co. v. Montclare Lanes, Inc. (1976), 42 Ill. App.3d 199, 355 N.E.2d 632). The defendants do not deny this, but rather contend the plaintiffs released the defendants from all liability. The plaintiffs, however, claim they have alleged facts in the complaint which would establish duress and thereby negate the validity of the release.

As to this claim the defendants maintain (1) the refusal of the defendants to consummate the transaction was not unlawful, and therefore, as a matter of law, duress could not be established, and (2) the plaintiffs could have sued to specifically enforce the real estate sale contract rather than entering into the release.

The Illinois Supreme Court, in Kaplan v. Kaplan (1962), 25 Ill.2d 181, 181 N.E.2d 706, recognized duress imposed by acts which are wrongful on a moral basis and, speaking through Mr. Justice Daily, stated:

"Duress has been defined as a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of the exercise of his free will, and it may be conceded that a contract executed under duress is voidable. [Citations.] Acts or threats cannot constitute duress unless they are wrongful; however, the rule is not limited to acts that are criminal, tortious or in violation of a contractual duty, but extends to acts that are wrongful in a moral sense. * * * `[T]he threat must be of such nature and made under such circumstances as to constitute a reasonable and adequate cause to control the will of the threatened person, and must have that effect, and the act sought to be avoided must be performed by the person while in that condition * * *.'" Kaplan, 25 Ill.2d 181, 185-86.

• 2 Ordinarily, a threat to break a contract does not constitute duress, and to infer duress, there must be some probable consequences of the threat for which the remedy for the breach afforded by the courts> is inadequate. If there is no full and adequate remedy from the courts> for the breach, the coercive effect of the threatened action may be inferred.

The plaintiffs had no freedom of choice. If they resisted the defendants' demand for release they had no place to move with their family, during the time needed to enforce their contractual claim through the judicial process. To prevent these ...


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