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Business Dev. Services v. Field Container Corp.





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.


This is an appeal from the trial court order which granted defendant's motion to dismiss plaintiff's amended complaint. The issues presented for review are: (1) whether the amended complaint states a cause of action; (2) whether the contractual two-year time limitation is applicable; (3) whether defendant waived the two-year limitation; (4) whether count II states a cause of action for breach of an oral contract; (5) whether plaintiff is entitled to recover under quantum meruit.

The amended complaint contains the following pertinent allegations:

Count I: In June, 1976, plaintiff, a business finder, was employed by defendant to introduce defendant to Folding Cartons, Inc. (Folding), in order to effectuate defendant's acquisition of Folding. On August 19, 1976, this employment agreement was memorialized in writing. Pursuant to this agreement, plaintiff introduced defendant to Folding, and negotiations between the latter two parties proceeded through December 1976, when negotiations ended. Plaintiff maintained continuous contact with Folding and, in December 1977, was informed that Folding was withdrawing from the market until an undetermined future date.

During January and February 1978, plaintiff continued its efforts on behalf of defendant and determined that due to Folding's financial position, negotiations for the acquisition would be improvident prior to the fall of 1978.

On April 4, 1978, a meeting was had between plaintiff and defendant, at which time plaintiff counseled a delay of approximately six months before defendant should recommence negotiations with Folding. At that time defendant requested and directed that plaintiff continue its performance of procuring, on defendant's behalf, the acquisition of Folding regardless of the time limitation in the agreement. Defendant therefore waived the two-year limitation. Pursuant to defendant's requests, direction, acts and conduct, plaintiff was induced to so continue.

Plaintiff maintained contact with Folding on defendant's behalf from April through October 1978. On October 19, 1978, negotiations for the acquisition of Folding by defendant were recommenced and continued through December 1978. On December 14, 1978, an agreement was executed for defendant's acquisition of Folding, which was closed on February 1, 1979, at a cost of $1,600,000 plus inventory and realty.

Count II: Plaintiff, in the alternative, alleges the initial agreement and a new verbal agreement on April 4, 1978. Defendant therein agreed to pay plaintiff the same commission set forth in the prior written agreement in consideration for plaintiff's using its best efforts to effectuate and procure the acquisition of Folding by defendant. Plaintiff also alleged that it fully rendered all services in conformity with the oral agreement of April 4, 1978.

Count III: Plaintiff alleges that between June 1976 and October 1978 it performed services at defendant's specific instance, request and direction to effect the acquisition of Folding by defendant. These services included, but were not limited to, the introduction of defendant to Folding, maintaining continuous negotiations and contact with defendant and Folding, and counseling defendant as to the proper time to approach Folding. Plaintiff claims that the reasonable value of its services is $74,000, which defendant has refused to pay.

In each count plaintiff prays judgment against defendant for $74,000, plus such further amount as may be determined to be due as a result of the purchase and sale, plus interest and costs.

Defendant filed a motion to dismiss the amended complaint as insufficient at law pursuant to sections 45 and 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 45 and 48). Plaintiff filed a response. The court granted the motion by an order which stated that plaintiff has not stated and cannot state any set of facts that would constitute a cause of action. This appeal followed.



• 1 A motion to dismiss admits all facts well pleaded and the reasonable inferences which may be drawn therefrom are taken as true for the purposes of the motion. (Horwath v. Parker (1979), 72 Ill. App.3d 128, 390 N.E.2d 72; Giers v. Anten (1978), 68 Ill. App.3d 535, 386 N.E.2d 82.) The attached exhibits are an integral part of the complaint and must be so considered. (Fowley v. Braden (1954), 4 Ill.2d 355, 122 N.E.2d 559.) A reviewing court should interpret the facts alleged in the complaint in the light most favorable to the plaintiffs. (Farns Associates Inc. v. Sternback (1979), 77 Ill. App.3d 249, 395 N.E.2d 1103; Cipolla v. Bloom Township High School Dist. No. 206 (1979), 69 Ill. App.3d 434, 388 N.E.2d 31.) Additionally, the complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that will entitle the plaintiff to relief. (Agee v. First National Bank (1979), 68 Ill. App.3d 794, 386 ...

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