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Semrow v. Harmswood Stables North

OPINION FILED SEPTEMBER 10, 1981.

PATRICIA SEMROW, PLAINTIFF AND DEFENDANT-APPELLANT,

v.

HARMSWOOD STABLES NORTH, INC., DEFENDANT AND PLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES CROSSON, Judge, presiding.

MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Appellant, Patricia Semrow, brought an action in forcible entry and detainer against appellee, Harmswood Stables, North, Incorporated (Harmswood). Pursuant to an installment agreement for warranty deed Harmswood was a contract purchaser from Semrow of real estate improved with a riding stable. Semrow claimed a forfeiture under the contract because Harmswood allegedly failed to keep the buildings and improvements on the land in good repair and because Harmswood had committed waste on the property. Prior to the filing of this suit Harmswood filed an action against Semrow for breach of the same contract. That suit was dismissed on Semrow's motion, and Harmswood subsequently filed an amended complaint for declaratory judgment and other relief. In that amended complaint Harmswood alleged, inter alia, that Semrow had refused to sign certain documents necessary for Harmswood to receive a Small Business Administration (SBA) disaster loan. The proceeds were for repair of damage caused by a severe snowstorm. Harmswood sought a finding that Semrow's refusal constituted a breach of an implied condition of the contract, that she not interfere with Harmswood's efforts to repair the buildings. The two suits were consolidated for trial. The trial court denied Semrow's motion for judgment on the pleadings on Harmswood's amended complaint, but after all the evidence on both actions was heard before a jury the court directed a verdict for Semrow on Harmswood's action. The jury then entered a verdict for Harmswood on Semrow's suit, denying Semrow the right to possession, and judgment was entered on the verdict.

On appeal Semrow contends: (1) the jury verdict was contrary to the manifest weight of the evidence; (2) the trial court erred in denying Semrow's motion for judgment on the pleadings; (3) the jury was incorrectly instructed on the defense of impossibility.

We affirm.

The pertinent evidence at trial was as follows. Semrow purchased the property from Don Peebles in October 1975. Shortly thereafter Harmswood entered the property under an option to purchase. That option was exercised on April 3, 1976, by a contract which provided, inter alia, that:

"3. Purchaser [Harmswood] shall keep the buildings and improvements on the premises in good repair and shall neither suffer nor commit any waste on or to the premises, and if Purchaser fails to make any such repairs or suffers or commits waste Seller [Semrow] may elect to make such repairs or eliminate such waste and the cost thereof shall become an addition to the purchase price immediately due and payable to Seller, with interest at seven (7) Per Cent per annum until paid.

11. In case of the failure of Purchaser to make any of the payments, or any part thereof, or perform any of Purchaser's covenants hereunder, this agreement shall, at the option of Seller, be forfeited and determined, and Purchaser shall forfeit all payments made on this agreement, and such payments shall be retained by Seller in full satisfaction and as liquidated damages by Seller sustained, and in such event Seller shall have the right to re-enter and take possession of the premises aforesaid.

15. The remedy of forfeiture herein given to Seller shall not be exclusive of any other remedy, but Seller shall, in case of default or breach, or for any other reason herein contained, have every other remedy given by this agreement or by law or equity, and shall have the right to maintain and prosecute any and every such remedy, contemporaneously or otherwise, with the exercise of the right of forfeiture, or any other right herein given."

On August 24, 1979, Semrow served on Harmswood a notice of intent to declare a forfeiture under the contract. That notice specified the following breaches of the agreement:

"* * * Purchaser has failed to keep the buildings and improvements on the said real estate in good repair and has suffered and committed waste thereon, in that:

(a) the roof of the main stable building over the show room arena has collapsed and has remained unrepaired for over six months;

(b) the outer stall area which was located along the southern wall of the western portion of the main stable building has been destroyed and has remained unrepaired and unreplaced for many months;

(c) parts of the ceilings in the main stable building have fallen in and have remained unrepaired for many months;

(d) the operating system servicing the various buildings (including the electrical and plumbing systems) have become broken down and been rendered useless in significant part ...


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