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Flannery v. Marathon Oil Co.

OPINION FILED AUGUST 27, 1979.

ROBERT FLANNERY, PLAINTIFF-APPELLANT,

v.

MARATHON OIL COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN F. HECHINGER, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This appeal taken by Robert Flannery (plaintiff) from an order dismissing his complaint for specific performance against Marathon Oil Company (defendant) brings before us two technical problems and an issue on the merits. We will dispose of these matters in order.

I.

On May 25, 1978, plaintiff filed his notice of appeal. The complete record was therefore due to be filed in this court on July 27, 1978. (58 Ill.2d R. 326.) On December 19, 1978, plaintiff filed a short record and a motion to extend the time for filing the complete record to and including January 15, 1979. Defendant filed objections to this motion and a cross-motion to dismiss the appeal, not based upon tardiness in filing the complete record or in presenting the motion, but entirely upon the failure of plaintiff to present and file a report of proceedings pursuant to Rule 323. This court allowed the motion for leave to file the record which was accordingly done. We took with the case the defendant's motion to dismiss the appeal. On January 22, 1979, defendant filed a second motion to dismiss the appeal based upon the same ground and citing Ladenheim v. McCormick (1978), 66 Ill. App.3d 188, 383 N.E.2d 751. This court took the additional motion with the case.

The case before us was decided by the trial court and plaintiff's complaint dismissed pursuant to a motion filed by defendant under section 48 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 48.) No evidence was heard by the trial court. The praecipe for record did not specify a report of proceedings.

• 1 In our opinion, in a situation of this type, where the trial court has proceeded without the taking of evidence and on the basis of pleadings and affidavits only, questions of law are presented "which may be reviewed by this court in the absence of a report of proceedings." (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App.3d 719, 722, 365 N.E.2d 115, appeal denied (1977), 66 Ill.2d 628.) In Ladenheim, cited and relied upon by plaintiff, testimony of various witnesses was presented to the trial court. (66 Ill. App.3d 188, 189.) It is accordingly ordered that the motion and additional motion of defendant to dismiss this appeal for want of a report of proceedings are denied.

II.

After hearing by the trial court, a final order dismissing plaintiff's complaint with prejudice was entered on February 9, 1978. On March 1, 1978, plaintiff filed a motion to vacate the previous order and for leave to file an amended complaint. By order entered March 14, 1978, the trial court directed that this motion to vacate be considered as a motion to reconsider the previous order. (Ill. Rev. Stat. 1977, ch. 110, par. 68.3(1).) By order entered April 27, 1978, the trial court denied plaintiff's motions to reconsider and for leave to file an amended complaint.

• 2 In its brief in this court, defendant urges that we have no jurisdiction to decide this appeal because plaintiff has attempted to appeal not from the final order of February 9, 1978, but from the order of April 27, 1978, which is not final and appealable. Therefore, defendant contends that "plaintiff has clearly attempted to appeal from the wrong order * * *." We disagree. It is basic and fundamental that the filing of the motion for rehearing, retrial, modification or to vacate the final judgment within the statutory time stays execution and the notice of appeal may be filed within the proper time after disposition of the statutory motion. (Ill. Rev. Stat. 1977, ch. 110, par. 68.3; see Fultz v. Haugan (1971), 49 Ill.2d 131, 135, 273 N.E.2d 403; Petersen Bros. Plastics, Inc. v. Ullo (1978), 57 Ill. App.3d 625, 629, 373 N.E.2d 416, appeal denied (1978), 71 Ill.2d 614.) Defendant's motion to dismiss the appeal for this reason is denied.

III.

On the merits of the situation the record shows that plaintiff negotiated with Joseph Mulrooney, an employee of defendant and its real estate representative, for the purpose of effecting a possible purchase of a parcel of real estate owned by defendant. Plaintiff's complaint alleges, "It was agreed among the parties that Plaintiff would purchase said property" at a price of $110,000 with $5000 down and the balance to be paid upon closing. On July 21, 1977, Mulrooney sent plaintiff a letter on defendant's letterhead enclosing a written offer to purchase with the request that this be completed and returned together with plaintiff's check for $5000. The offer to purchase is a lengthy document containing a number of provisions which need not be detailed here. It is undisputed that plaintiff signed this offer and forwarded it to Mulrooney with plaintiff's check for $5000.

On September 15, 1977, Mulrooney wrote to plaintiff on defendant's letterhead. This letter received by plaintiff returned the check and the signed offer to purchase. It stated that defendant had rejected the proposal but was engaged in other negotiations and expressed regrets by Mr. Mulrooney. Plaintiff's complaint sought specific performance of the alleged contract between the parties for sale of the real estate to plaintiff.

Defendant's motion to dismiss under section 48 of the Civil Practice Act averred that the offer to purchase provided for signed acceptance by defendant and that defendant had never signed the offer but had in fact rejected it. The motion cited the statute of frauds requiring signature in writing of a contract for sale of lands. (Ill. Rev. Stat. 1977, ch. 59, par. 2.) The motion also averred that Mr. Mulrooney was authorized only to solicit offers to purchase real estate owned by defendant. He had no authority to make or accept an offer to purchase. Appended to the motion is an affidavit by Leon Marlow, district manager for defendant, stating that Mulrooney was authorized only to invite offers to purchase and that he had no authority to bind defendant or to accept offers in its behalf.

Plaintiff's motion to vacate filed March 1, 1978, prayed that the order of dismissal be vacated and that plaintiff be permitted to file an amended complaint making Joseph Mulrooney an additional defendant. The motion also averred that a motion to dismiss for lack of legal capacity of an agent was not specifically ...


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