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Wentcher v. Busby





APPEAL from the Circuit Court of Cook County; the Hon. R.J. HOLZER, Judge, presiding.


Plaintiff, Ernest C. Wentcher, brought this action against defendants, Howard A. Busby (Busby), Stanford L. Busby, and American National Bank & Trust Co. of Chicago, as trustee, seeking specific performance of an option contract to purchase certain real estate. At the close of plaintiff's case, the trial court entered judgment in favor of defendants. (Ill. Rev. Stat. 1979, ch. 110, par. 64(3).) Plaintiff appeals.

In his amended complaint, plaintiff alleged that by an agreement dated October 18, 1976, Busby, as agent for owners of a tract of realty known as Long Meadows, granted him an option to purchase the subject parcel; that he exercised the option on April 16, 1977; that Busby acknowledged and accepted his exercise of the option on May 20, 1977; that Busby purported to terminate the option in June 1977; and that he was at all times a ready, willing and able buyer. Defendants' answer stated that Busby had entered into an agreement entitled "Option with Contract to Purchase" but denied that Wentcher had properly exercised the option.

Wentcher presented the following pertinent facts at trial. He is engaged in the sale of real estate investment properties. Busby was an owner of two parcels of real estate, known as Woodview and Long Meadows, located in Burr Ridge, Illinois. In June 1976, Wentcher and Busby entered into negotiations concerning the acquisition of these properties. Wentcher advised Busby that he did not wish to purchase one parcel without having the opportunity to acquire the other; he was prepared to buy Woodview but wanted an option to purchase Long Meadows. On July 15, 1976, the parties entered into an agreement pursuant to which Busby promised not to sell Long Meadows for 90 days. From July through October 1976, Wentcher, who planned to resell Long Meadows, undertook engineering studies to determine the property's suitability for development and contacted village officials in an effort to reinstate more favorable zoning regulations.

On October 18, 1976, the Woodview sale was closed. At the closing, Wentcher and Busby executed an option agreement for the purchase of Long Meadows which read, in relevant part:

"Optioner [Busby] does hereby grant to Optionee [Wentcher] the exclusive right and option, effective for ninety (90) days from the date hereof, or such extended option period as hereinafter provided (Hereinafter referred to as `Option Period'), to purchase the Property and all rights therein.

This Option may be exercised at any time within the Option Period by Optionee notifying Optionor. Upon giving such notice, this instrument shall constitute a contract of purchase, whereby Optionor covenants to sell and convey said real estate, and Optionee agrees to purchase same, subject to proof of good title and to the terms and conditions set forth in the Real Estate Sales Agreement set forth in Rider C herein."

A separate paragraph of the option agreement provided:

"Upon exercise of the Option in accordance with the above paragraph, Optionor and Optionee shall execute the Real Estate Sales Agreement which is attached hereto as Rider C."

The agreement further provided that the option could be extended for an additional period up to 90 days upon the optionee's payment of $2,000 for each 30-day extension.

At the time the option was executed, exhibits referred to in the option, including Rider C, had not yet been prepared. Roger Brejcha, Wentcher's counsel, and William Zolla, Busby's counsel, who were responsible for drafting these exhibits, agreed that the documents to be used in the Long Meadows transaction would be similar to those employed in the Woodview purchase. By the end of November 1976, all of the exhibits to the option had been prepared and were initialed by Wentcher and Busby. Rider C, the Real Estate Sales Agreement, authorized amendment from time to time by written instrument executed by both parties.

By agreement of the parties, the option period which was to expire on January 18, 1977, was extended 30 days. At Wentcher's request, Busby did not require him to pay $2,000 for the extension. Thereafter, Wentcher requested and was granted, again without payment, a 61-day extension of the option period. Busby informed Wentcher, however, that he would have to exercise the option by April 18, 1977, which was several days prior to the village election involving the zoning issue.

By letters dated April 16 and 18, 1977, and telegrams of April 18, 1977, Wentcher transmitted the following message to Busby:

"I agree to exercise the option on property known as Longmeadow pursuant to our letter agreement dated July 15, 1976, as amended by option agreement dated October 18, 1976, and as extended by subsequent telegram between us. I will contact Zolla regarding contract referred to in October 18, 1976, agreement but never provided by Zolla. Will establish escrow at [Chicago Title & Trust] for ...

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