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Botti v. Avenue Bk. & Trust Co. of Oak Park

OPINION FILED FEBRUARY 19, 1982.

ALDO E. BOTTI, PLAINTIFF-APPELLANT,

v.

AVENUE BANK AND TRUST COMPANY OF OAK PARK, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. CARL F. HENNINGER, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Aldo E. Botti, plaintiff, a prospective purchaser of land held in a land trust, sued the Avenue Bank and Trust Company of Oak Park, as trustee, the trust beneficiary Ruth Stewart, Edward Van De Houten, Jr., the purchaser under a contract entered into prior to the Botti contract, and Clyde Building Corporation, who purchased from Van De Houten. Tortious interference with contract, conspiracy and breach of contract were charged in the complaint. The complaint was dismissed for failure to state a cause of action. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) Botti was denied leave to amend, and he appeals.

Essentially, Botti argues that a cause of action was stated, based on the allegations that the Van De Houten agreement became null and void for failure of Van De Houten to perform according to its terms; that the waiver of these conditions was a breach of the Botti contract; and that the sale to Van De Houten and his conveyance to Clyde therefore amounted to a tortious interference with Botti's contractual rights. We cannot agree.

The following well-pleaded facts must be taken as true (see Gravitt v. Jennings (1979), 79 Ill. App.3d 286, 288) for the purpose of ruling on the section 45 motion. The Van De Houten agreement, dated December 15, 1978, contained the conditions:

"2. That Purchaser is able to secure a mortgage of $1,000,000 within 120 days from the date of this contract with an interest rate not to exceed 1% above the then established prime rate of the 1st National Bank of Chicago * * *; purchaser shall have waived the condition of acceptable financing unless within 120 days from the date of the contract he states that he is unable to arrange such financing. Seller shall have an additional 145 days to arrange said financing for Purchaser * * *.

3. * * *

Purchaser shall not cause or allow any mechanic's lien claim to be placed on the subject premises, * * *.

5. If any of the conditions in Paragraphs 1, 2, 3 and 4 of this Rider cannot be met, then this Contract shall be null and void without any further action of any party and each party shall be released from any obligation to the other party, and all monies paid by the Purchaser shall be returned to the Purchaser, except those monies spent pursuant to Paragraph 1 of this Rider."

The Botti agreement was entered into on December 28, 1978, and provided, as pertinent:

"WHEREAS, SELLER has entered into a real estate sales contract dated December 15, 1978, with EDWARD D. VAN DE HOUTEN, JR., a copy of which is attached hereto * * *.

NOW, THEREFORE, the parties agree as follows:

1.) PURCHASER agrees to buy and SELLER agrees to sell the property described in the previous agreement pursuant to the terms and conditions of said previous agreement, including the attached Riders and Exhibits, except as modified herein, upon the termination of the previous agreement by those parties to the previous agreement. * * *."

There is a further allegation that on or about July 7, 1980, the defendant Ruth Stewart, beneficiary of the land trust, personally requested that Botti grant Van De Houten an extension of time to obtain financing and that plaintiff, who had on June 1, 1980, denied a similar request by Van De Houten denied the beneficiary's request. There are further allegations that the trustee and Van De Houten finally completed the sale by deed dated December 1, 1979; and that immediately thereafter, Van De Houten sold the property to Clyde Building Corporation by deed dated July 8, 1980.

The Botti agreement plainly provides that plaintiff's right to purchase could arise only upon the termination of the Van De Houten agreement by the parties to that agreement. The complaint, however, does not allege that the parties terminated that agreement, and in essence admits that the trustee in the Van De Houten agreement ...


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