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Moran v. Commonwealth Edison Co.

OPINION FILED AUGUST 16, 1979.

EMMETT MORAN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS-APPELLEES. — (JEAN K. NESSINGER ET AL., APPELLEES.)



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. CLYDESDALE, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal by the plaintiffs Moran, Logsdon and Hallett from orders of the circuit court of La Salle County which dismissed their suit in forcible entry and detainer against the defendants Commonwealth Edison Company, the Kennedys, Ugolinis, and Sebby. The other order from which this appeal is taken was the dismissal of a petition filed by the plaintiffs against the Nessingers and Killeleas which sought all or a portion of a sum of money which was to be received by the latter individuals from Commonwealth in settlement of a contract action.

The factual situation which ultimately gave rise to this appeal is complex, and in order to properly set forth the same we must hark back to the spring of the year 1971. At that time Commonwealth Edison was desirous of constructing an atomic power plant and lake. Prior to April 10, 1971, Hugh R. Killelea, Stacia Hynds and Jean K. Nessinger and their respective spouses were the owners of approximately 320 acres of farmland in La Salle County which was to become the subject of this lawsuit. Commonwealth was desirous of obtaining this land and in fact did so by two separate contracts. The first contract was entered into by Stacia and Douglas A. Hynds and Hugh R. Killelea and Agnes Killelea as sellers and Commonwealth Edison as the buyer. This contract was executed on April 10, 1971, and contained the following pertinent provisions:

"For the farming year of 1971 the Sellers agree to rent the land from the Purchaser on the basis of $10.00 per acre per year in exchange for which the Sellers herein will receive the landlord's share of the crop and pay the landlord's share of the expenses, except taxes.

In the event the land in question, or any part thereof, continues to be used for agricultural purposes, the Seller herein will have the option to lease the same from the Purchaser on the basis of $22.50 per acre per year."

On May 12, 1971, the Nessingers entered into a contract for exchange of deeds which resulted in the conveyance of the remainder of the land to Commonwealth.

The May 12, 1971, agreement contained the following provisions:

"For the farming year of 1971 Jean K. Nessinger and Francis Nessinger, together with the other previous owners, shall have the privilege to rent the land in Tract No. 1 on the basis of $10.00 per acre per year, in exchange for which the Parties of the First Part will receive their share of the landlord's share of the crop and pay their share of the landlord's share of the expenses, except taxes.

In the event the land in Tract No. 1, or any part thereof, continues to be used for agricultural purposes, Jean K. Nessinger and Francis Nessinger, together with Stacia Hynds and Hugh Killelea, will have the option to lease the same from the Party of the Second Part on the basis of $22.50 per acre per year."

For the farming season of 1971, Hugh R. Killelea and Jean K. Nessinger executed a farm lease for a portion of the land conveyed by them. For the farming season of 1972 the Killeleas and Nessingers leased the entire 320 acres from Commonwealth. By correspondence dated October 3, 1972, Commonwealth notified the Killeleas and Nessingers that the land would not be available for farming in the year of 1973 and that they were to deliver up possession of the land on the last day of February 1973. On January 28, 1974, the Killeleas and Nessingers gave Commonwealth written notice that they would exercise their option to lease the land in question for farming purposes. They predicated their option on the provisions contained in the May 10, 1971, contract for deed and the May 12, 1971, contract for exchange of deeds. The Killeleas and Nessingers further informed Commonwealth that they were prepared to tender the $22.50 per acre rental payment. On the same date, namely January 28, 1974, the Killeleas and Nessingers sublet the land to the plaintiffs Moran, Logsdon and Hallett. At the time of the subletting the Killeleas and Nessingers were represented by counsel who was later charged by the sublessors with misconduct as far as his representation was concerned. A more detailed account of this facet of this appeal will be set forth if it becomes pertinent to the determination of the issues presented.

In March 1974, the Killeleas, Nessingers, Moran, Logsdon and Hallett as plaintiffs filed a forcible entry and detainer action against Commonwealth. This action in the circuit court of La Salle County was given number 74-3-1203SC.

It is apparent that some efforts were made to settle the forcible entry and detainer case. On May 2, 1974, a document dated May 1, 1974, purporting to be a stipulation settling the forcible entry case between the Killeleas and Nessingers was filed in the office of the Circuit Clerk of La Salle County. On the same date an order was entered by the circuit court dismissing with prejudice the Killeleas and Nessingers as plaintiffs in the forcible entry and detainer suit. The dismissed plaintiffs disavowed the stipulated settlement and by new counsel on May 29, 1974, moved to vacate and set aside the dismissal order.

It was during this sequence of events that Commonwealth conveyed portions of the land in question to Kennedys, Ugolinis, and Sebby, the latter being a tenant. These individuals were added as parties defendant in the forcible entry and detainer action.

On July 22, 1976, the circuit court on its own motion held that in the forcible entry and detainer case, No. 74-3-1203SC, the Killeleas and Nessingers were not necessary and proper parties and they were dismissed, leaving only Moran, Hallett and Logsdon as party plaintiffs in the action.

On January 10, 1977, the Killeleas and Nessingers brought suit for breach of contract against Commonwealth, alleging that the defendant had breached the 1971 contract for deed and contract for exchange of deeds. This action was styled as No. 77-L-12. Shortly thereafter case No. 74-3-1203SC and case No. 77-L-12 were consolidated for trial.

On or about June 12, 1978, the circuit court was advised by counsel for the Killeleas and Nessingers that the breach of contract suit (case No. 77-L-12) between his clients and Commonwealth had been settled and that settlement documents were being prepared. On August 23, 1978, the plaintiffs Moran, Hallett and ...


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