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Crane v. Mulliken

OPINION FILED AUGUST 6, 1980.

DENNIS A. CRANE, PLAINTIFF-APPELLANT,

v.

C.E. MULLIKEN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 2, 1980.

Plaintiff appeals from the order of the trial court which dismissed with prejudice his amended complaint for specific performance and entered judgment for defendant.

On April 1, 1978, plaintiff, Crane, as buyer, and defendant, Mulliken, as seller, executed a printed form of contract relating to the sale of 18.5 acres described as the Modern Mart Plaza for a stated consideration of $1,168,500. It recited the deposit of $50,000 into the "Crane Real Estate Trust Account" which apparently was controlled by buyer. The form included 10 numbered paragraphs denominated "Conditions of Offer." Four paragraphs were completed with typed information or provisions, including the provision that possession was to be delivered on or before July 1, 1978; payment was to be cash at closing "Subject to purchaser obtaining financing. Purchaser has 90 days to obtain financing." One paragraph provided "all real and personal property included."

The complaint alleges that the contract related to:

"[T]he real estate, improvements, inventory and fixtures of the Modern Mart Plaza, a shopping center in Rantoul, Illinois, that included an IGA grocery store which Defendant had leased to a Third Party on a long-term lease, a Ben Franklin Variety Store, a ladies' dress shop, an Econ-O-Mart discount store, and numerous other commercial stores, some of which Defendant himself operated, and some of which were leased to others; that Plaintiff is not certain which stores Defendant leases and which he operates."

It is further alleged that buyer sought financing at one lending institution but was advised:

"[T]hat records and documentation of existing leases, and income and expense records of the shopping center complex and its stores would have to be examined by the prospective lender before a decision would be made regarding financing Plaintiff's purchase of the shopping center."

It is further alleged that it was and is the ordinary, customary practice of commercial lending institutions in the area to require financial records as described for purposes of evaluating applications for financing, and upon such allegation the buyer alleged:

"That an implied provision of said contract was that the Defendant, as Seller, would reasonably cooperate with Plaintiff, as Buyer, in providing the Buyer the information from which Buyer could attempt to obtain `financing' to effect the purchase. That the information which Buyer reasonably needed from Seller for this purpose included copies of any existing leases upon the property and information of the amount of rental payments received and receivable from such property, inventory records, sales records, and expense records from all stores in said shopping center operated by Defendant himself."

It was also alleged that plaintiff was informed and believed that if the seller had provided said records and information and:

"[I]f that information contained substantiation of the shopping center's financial records and status, the Plaintiff could have obtained necessary loans and financing to consummate the purchase from Defendant, pursuant to said contract and within the time period provided for in said contract, and that Plaintiff would have been able to consummate said purchase."

The complaint further alleged:

"That said shopping center was a going operating retail concern at the date of the execution of this contract herein, and that an implied provision of said contract was that Defendant would, until consummation of the sale, maintain the operation of said shopping center complex in a manner similar to its operation prior to that date and would maintain the inventories of stores operated by him during the period prior to consummation of the sale; that Defendant has breached his said obligation under the contract in that he has caused or permitted the inventories in the stores operated by ...


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