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Docas v. G.a.d.

OPINION FILED MAY 16, 1980.

MARY DOCAS, PLAINTIFF-APPELLEE,

v.

G.A.D., INCORPORATED ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendants appeal from a judgment of the trial court in which plaintiff was awarded $4,600 as damages for defendants' alleged breach of contract for the purchase of plaintiff's business.

Their sole contention on appeal is that the trial court erred in granting judgment for plaintiff. More specifically, defendants contend that the trial court erroneously found that they failed to act as reasonable persons in discharging their obligation under the contract they had with plaintiff.

On January 19, 1974, plaintiff, Mary Docas, and defendant, Richard Africk, president of G.A.D., Inc., entered into a written contract by which defendants agreed to purchase plaintiff's business for the sum of $9,600. After some negotiation, the parties agreed that this figure was a fair price for the sale of all equipment, machinery, fixtures and good will of plaintiff's then defunct carryout chicken shop, previously operated under the name of "Little Red Hen" in Skokie, Illinois.

The dispute in this case turned upon whether defendant Africk made reasonable efforts to perform his duties under the condition precedent contained in that contract. That condition was stated in the letter of offer written by Africk to purchase plaintiff's business. It provided:

"G.A.D. incorporated's offer to buy is dependent upon the granting of acceptable lease terms by the leassor [sic] on the premises at 3560 Dempster, Skokie, Illinois." (Emphasis added.)

The phrase "acceptable lease terms" was defined in an addendum to the offer, written by plaintiff's attorney and signed by Africk, which stated:

"Buyer agrees, that the terms `acceptable lease terms' in the third (3rd) unnumbered paragraph of the agreement shall mean: that Buyer shall be able to obtain from the Lessor of the premises at 3560 Dempster Street, Skokie, Illinois, the consent of the lessor to the tenancy of Buyer under the terms and conditions as exist between Lessor and George Docas (under lease dated 6/27/72) for the balance of the lease term under said lease; plus an option in favor of Buyer to extend or renew the said lease for an additional five (5) years upon the same terms and conditions except for an increase in rental to $300.00 per month; plus a further option in favor of Buyer to extend or renew the said lease for an additional three (3) years thereafter upon the same terms and conditions except for a further increase in rental to $350 per month. (Also see paragraph 8 hereof.)"

One or two days after the contract was executed defendant Africk returned the keys to the premises to the plaintiff. Then, on January 31, 1974, he wrote a letter to plaintiff which stated:

"Dear MRS. DOCAS: This will confirm that the keys to GEORGE'S LITTLE RED HEN have been returned to your house on January 31, 1974, and by so doing we hereby cancel our offer to buy the aforementioned business.

We are very sorry circumstances did not permit a satisfactory conclusion to our negotiations.

Sincerely,

/s/ Richard I. Africk President G.A.D. Incorporated."

At trial, plaintiff sought to prove that Africk repudiated the contract and that plaintiff was forced to sell the business at a loss. This assertion was premised upon Africk's failure to use reasonable efforts in procuring "acceptable lease terms" from Arthur Peponis, the lessor of the premises at 3560 Dempster, Skokie, Illinois. In contrast, Africk emphasized that his obligation to purchase plaintiff's business was conditioned upon Peponis' cooperation in granting him an assignment of the lease along with the option for the specified eight-year period. ...


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