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Lynge v. Kunstmann

OPINION FILED MARCH 27, 1981.

RICHARD J. LYNGE ET AL., PLAINTIFFS-APPELLEES,

v.

KEITH A. KUNSTMANN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM BLACK, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

This suit challenges the propriety of a summary judgment entered in favor of the sellers of real estate against their purchasers in the amount of $7,300 representing the earnest money as liquidated damages by the Circuit Court of Du Page County. Plaintiffs, Richard J. Lynge and his wife Dorothy, owned residential real estate in joint tenancy which they listed with Thorsen Realtors' Lombard office on March 24, 1977. It appears that the Lynges planned to move due to a change in Mr. Lynge's employment and it was decided that Mrs. Lynge would remain in the Lombard residence until it was sold. On May 17 the defendants, Keith A. Kunstmann and his wife Jeannette, signed a written offer of $73,000 to purchase the property, which was submitted through Baker Realty utilizing a standard residential real estate contract in common use in Du Page County. The offer was presented to Mrs. Lynge and was reviewed the evening of May 17 in her home by telephone with Mr. Lynge, who was then residing in Fairfield Bay, Arkansas. Certain changes were agreed upon between the Lynges, and Mrs. Lynge initialed the changes and signed the document. Carol Lindstrom, of Thorsen Realtors, and Mr. Baker, of Baker Realty, were present in the Lynge home at the time. There appears to have been a rider attached to the contract which Mrs. Lynge did not sign but rather made a notation on its face that it was not agreed to and thereafter initialed the notation.

On May 20, 21, and 23, 1977, Mr. Lynge sent the following telegrams to Mrs. Carol Lindstrom at Thorsen Realty, his real estate agent:

May 20, 1977 "I accept the 73,000 offer for our house at 124 22nd Street, Lombard, under the following conditions #1 No contingencies except for obtaining fiancing [sic] for a 50,000 mortgage [sic] #2 Closing will be on July 6, 1977 #3 Occupancy will be July 8, 1977 #4 Drapies [sic], swimming pool and equipment are included.

Richard J. Lynge"

May 21, 1977 "This is a confirmation copy of a previously phone-delivered telegram.

Amend yesterday's telegram by adding the words `delete from contract the wording to buyers satisfaction'.

Richard J. Lynge" May 23, 1977 "Delete the paragraph in the contract use and occupancy clause.

Richard J. Lynge"

May 23, 1977 "Amend terms of contract to read closing and possession to take place no later than July 28, 1977.

Richard J. Lynge."

The parties' depositions and those of witnesses are in agreement that all the changes requested by Mr. Lynge pursuant to his May 17 telephone call and subsequent telegrams were made and initialed by Mrs. Lynge and the Kunstmanns. We note however that the subject matter of the second and third points in the first telegram were never changed as requested. These changes related to closing on July 6 and occupancy on July 8. Nevertheless, it would appear that no further changes were requested, made, or initialed after the date of May 24, 1977. It further appears that the real estate agreement bearing the signature of Mrs. Lynge and the Kunstmanns was mailed by one of the realtors to Mr. Lynge at Fairfield Bay, Arkansas. The Kunstmanns maintain that they were advised on May 27 that the contracts had been mailed to Mr. Lynge that day, but Mr. Lynge indicates that he received the contracts on May 26, signed them that day, but did not return them immediately and is uncertain as to the date he did return them, but acknowledges that it was several days after he had received them. He stated that he gave the contracts to a friend who returned to Chicago with them and who had them delivered to Thorsen Realty by messenger. The deposition of Carol Lindstrom of Thorsen indicates that she was unaware of the return of the signed contracts until June 17.

On May 27, at approximately 9:30 a.m. the Kunstmanns delivered an earnest money check in the amount of $7,300 to Baker Realty. They said that later in the day, "Bud," who was taking Mr. Baker's place while he was on vacation, returned to them the receipt of Thorsen Realty for the earnest money and indicated that the contracts had been mailed to Mr. Lynge that day. Later in the day of May 27 the Kunstmanns changed their minds about purchasing the property and called their attorney, who was unable to see them immediately. Thereupon they drafted hand-written notices of withdrawal of their offer and hand-delivered the notices to Mrs. Lynge at her residence and to the offices of Thorsen and Baker realtys. Thereafter they stopped payment on their earnest money check.

Plaintiffs' complaint alleged, inter alia, that a valid contract had been entered into prior to the attempted notice of cancellation by the defendants, who refused to perform their obligations under the contract, and that the plaintiffs were at all times ready, willing and able to perform. In their answer, defendants denied that a valid contract was entered into and that they failed to perform, and stated affirmatively that the contract was cancelled prior to acceptance and the transmittal of acceptance by Mr. Lynge. Defendants further alleged ...


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