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Swartzberg v. Dresner





APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.


Rehearing denied July 14, 1982.

This action was originally brought to recover losses sustained by plaintiff, Thelma Swartzberg, from investments made by defendant's husband. Plaintiff sought to impose a constructive trust on the proceeds of the sale of defendant's home based on defendant's alleged promise to repay plaintiff. The trial judge entered judgment in favor of plaintiff on the issue of liability but denied the request for imposition of a constructive trust.

From this judgment, defendant appeals, presenting the following issues for review: (1) whether the trial court erred in finding that defendant agreed to pay plaintiff from the proceeds of the sale of defendant's home, and (2) whether the trial court erred in finding that defendant's alleged agreement to pay her husband's debt was legally enforceable.

Plaintiff cross-appeals, raising the following issues: (1) whether the trial court erred in refusing to impose a constructive trust, and (2) whether the trial court erred in refusing to admit into evidence a letter written by defendant's daughter.

We reverse.

On March 3, 1975, plaintiff, Thelma Swartzberg, formerly known as Thelma Benjamin, filed her complaint against Ruth Dresner, formerly known as Ruth Benjamin. Plaintiff's third amended complaint alleged that Mayer Benjamin owed a fiduciary duty to plaintiff; that Mayer disclosed to plaintiff that he had misappropriated her money; that he would put his home on the market and when it was sold he would pay her the money owed. Defendant, Ruth Benjamin Dresner, also promised plaintiff that when the home was sold plaintiff would be paid the amount due her. Relying on these promises, plaintiff took no legal action to enforce her claim until 1975. Plaintiff requested the imposition of a constructive trust upon the proceeds from the sale of defendant's home or upon other assets into which the proceeds were converted. Plaintiff further alleged that defendant reaffirmed Mayer's promise to pay her when the house was sold and, alternatively, defendant made a new promise to pay plaintiff the amount due when the property was sold. Defendant answered with a general denial of all the allegations.

The following testimony was adduced at trial. Plaintiff, Thelma Swartzberg, testified that she was married to Mayer's brother, Sol. Sol and Mayer owned a wholesale produce company. After Sol's death, Mayer told plaintiff that he would handle her money. Plaintiff turned over all of her money to Mayer — approximately $120,000. He gave plaintiff an allowance out of her monies. Mayer freely bought and sold stocks for her. When he sold the stocks, a check was issued to him and put into his personal account.

In October 1970, plaintiff, while living in Arizona, received a telephone call from defendant, Ruth, informing her that Mayer had suffered a heart attack and was in the hospital; there was no money. Plaintiff returned to Chicago and when she visited Mayer he said to her, "Temmie, I am so very sorry. I used your money. I know I should not have done this, but I did. And I have no way of paying it back until we sell the house."

Plaintiff and Ruth went to Exchange National Bank in Chicago to examine Mayer's safe deposit box where they found a manila envelope indicating the contents belonged to Thelma Benjamin. The envelope contained stocks. Ruth thanked plaintiff for not putting a lien on their home or suing Mayer. Ruth stated that the only way they could pay their bills would be through the sale of their home.

Plaintiff told defendant that when the house was sold, Mayer and defendant would not have much money left after paying their debts, so she was willing to accept 6% interest on the money owed her until Mayer could repay her. Ruth related this to Mayer; he said it was a good idea but he could not pay the interest at that time. Plaintiff discovered that Mayer was destitute.

Plaintiff did not consult a lawyer because she was promised repayment and trusted Mayer and Ruth. Mayer died in 1972. On May 3, 1974, plaintiff wrote defendant a letter, stating the following:

"Ruth, I do expect payment of the money due me when the house is sold. I know you agree that I have been patient and fair in this matter. Enough time has passed for you to come to conclusions about situations, so I would appreciate very much knowing your plans. My love to the girls and John. And, Ruth, dear, please be happy in your new life, and let's always be good friends. With Love, Temmie."

Ruth did not reply. Later in 1974, plaintiff called defendant and asked whether defendant had sent the money to her in the mail. Defendant responded in the negative and stated that she had not planned to pay plaintiff. Defendant said if things changed at all, there was a possibility of repayment, probably. Plaintiff again wrote defendant a letter on September 17, 1974. She also learned that defendant had sold her home.

Plaintiff stated that Ruth did not handle the finances or participate in business discussions of the produce company. Around 1954 or 1955, plaintiff and Mayer operated a ...

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