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Central States Pension Fund v. Gaylur Prod.

OPINION FILED NOVEMBER 27, 1978.

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND ET AL., PLAINTIFFS-APPELLANTS,

v.

GAYLUR PRODUCTS, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

The second cause of action in the amended complaint of plaintiff, Central States, Southeast and Southwest Areas Pension Fund, an Illinois Trust, by its Trustees, Loran W. Robbins, Robert E. Schlieve, Hubert L. Payne, Marion W. Winstead, Harold G. Yates, Robert J. Baker, Howard McDougall, Leroy L. Wade, Thomas F. O'Malley and Earl N. Hoekenga (plaintiff), was directed solely against Irwin S. Weiner (defendant). The circuit court of Cook County dismissed it with prejudice for failure to state a cause of action. Plaintiff appeals, contending that it was legally sufficient.

In pertinent part the amended complaint alleged:

"1. Plaintiff CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND (`PENSION FUND') is an Illinois trust having its offices and principal place of business in the City of Chicago, County of Cook, State of Illinois. The PENSION FUND is administered by its Board of Trustees, composed of plaintiffs LORAN W. ROBBINS, ROBERT E. SCHLIEVE, HUBERT L. PAYNE, MARION M. WINSTEAD, HAROLD G. YATES, ROBERT J. BAKER, HOWARD McDOUGALL, LEROY L. WADE, THOMAS F. O'MALLEY and EARL N. HOEKENGA.

2. Defendant GAYLUR PRODUCTS, INC. (`GAYLUR') is an Illinois corporation which does or has done business in the City of Chicago, County of Cook, State of Illinois.

3. Defendant IRWIN S. WEINER (`WEINER') is a resident of the County of Cook, State of Illinois.

4. On or about June 21, 1971, Defendant GAYLUR, by its President, Defendant WEINER, executed and delivered to Plaintiffs a promissory note in the principal amount of $906,004.00, due and payable February 1, 1974, bearing interest at 6% until maturity and 9% thereafter.

5. On or about October 3, 1972, Defendant GAYLUR, by its President, Defendant WEINER, executed and delivered to Plaintiffs a promissory note in the principal amount of $500,000.00, due and payable on demand, bearing interest at 8 1/2% until maturity and 9% thereafter. * * *

6. Said promissory notes were executed and made payable at the offices of the Pension Fund in Chicago, County of Cook, State of Illinois.

7. In connection with said promissory notes, Defendant GAYLUR, by its President, Defendant WEINER, executed and delivered to Plaintiffs certain pledge and security agreements covering property of Defendant GAYLUR located in Deming, New Mexico. Defendants being in default on said notes, Plaintiffs enforced their rights against the collateral of Defendant GAYLUR by public sale held pursuant to the New Mexico Uniform Commercial Code. The sum of $50,000.00 was realized at said public sale, held March 1, 1974, leaving a deficiency of $1,356,004.00 plus interest as of the date of sale.

8. By the terms of both promissory notes, defendant GAYLUR also agreed to pay all costs of collection, including reasonable attorneys' fees. In order to collect the sums due and to enforce Plaintffs' rights in the collateral of Defendant GAYLUR, Plaintiffs have employed Teitelbaum, Wolfberg, Guild and Toback, Chicago, Illinois, and said attorneys have performed services and incurred expenses in so doing. The reasonable amount of expenses incurred to date is at least $1,000.00, and the reasonable charge for said services is at least $5,000.00. Further expenses and charges will be incurred in the prosecution of this action to judgment.

9. Defendant GAYLUR owes to Plaintiffs the amount of $1,356,004.00 plus interest at the agreed rates. Defendant GAYLUR further owes Plaintiffs all costs of collection, including attorneys' fees, as specified in paragraph eight (8) hereof.

11. Defendant WEINER was the President and sole director and shareholder of Defendant GAYLUR.

12. There exists, and at all times material hereto has existed, a unity of interest and ownership between defendants WEINER and GAYLUR, such that any individuality and separateness of ...


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