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Bocchetta v. Mccourt

OPINION FILED JUNE 6, 1983.

VITTORE BOCCHETTA, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

JAMES MCCOURT, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Lyle Lipe, Judge, presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 11, 1983.

Plaintiff (Vittore Bocchetta) filed suit to recover $10,000 paid under an installment agreement for warranty deed (agreement). The circuit court of Cook County entered judgment in favor of defendant (James McCourt) and plaintiff appeals.

The following issues are presented by this appeal: (1) whether plaintiff's default terminated the agreement; (2) whether defendant's acts were sufficient to declare a forfeiture; (3) whether plaintiff was entitled to treat defendant's actions of undertaking to sell the real property to a third party prior to perfecting the forfeiture as an offer to rescind the agreement; and (4) whether an offer to rescind the agreement would enable plaintiff to recover his downpayment plus post-judgment interest.

In his cross-appeal, defendant contends that the trial court erred in denying his petition for attorney fees.

We reverse and remand with instructions.

On February 1, 1978, plaintiff and defendant entered into an installment agreement for warranty deed (agreement). The agreement provided, in part, that plaintiff would purchase the real property (property) located at 833-839 North Dearborn Street, Chicago, for $320,000. Ten thousand dollars was payable immediately. Possession was to be delivered to plaintiff on February 28, 1978, upon payment of the second installment of $85,000. The remaining balance of $225,000 was due on or before February 27, 1981. The agreement further provided that if plaintiff failed to make the payments as required, such payments would be forfeited at defendant's option. To perfect the forfeiture, defendant was required to file a written declaration of forfeiture with the recorder's office.

Plaintiff made the initial payment of $10,000. However, he failed to tender the additional sums due under the agreement. After defendant sold the property to a third party, plaintiff filed this action to recover the $10,000 he had paid pursuant to the agreement.

At trial, the following evidence was produced. Defendant testified that he had received information concerning plaintiff's inability to make the February 28, 1978, payment. He was prepared to deliver possession to plaintiff on that date and was present at the title company to close the transaction. However, plaintiff did not appear at the closing because he did not have sufficient funds to make the payments. Thereafter defendant placed the property on the market. He received an offer and entered into a contract for sale with a third party. The record indicates that on April 14, 1978, defendant sold the property.

Mr. Solomon represented plaintiff for the purpose of closing the real estate transaction. He testified that he received a copy of the notice of forfeiture. He then called defendant's attorney, Mr. Kneafsey, and informed him that plaintiff was desirous of completing the contract. He further testified that Mr. Kneafsey replied that the property would be sold to another party and that defendant was intent on keeping the $10,000.

Mr. Kirkton, an attorney in the tract department of the Cook County Recorder of Deeds, produced certified copies of the documents which were recorded against the property from January 1, 1978, and May 1, 1978. The notice of forfeiture was not among the documents produced. Furthermore, Mr. Howard, a title examiner from Inter-county Title Company, searched the records at the recorder's office and was unable to find the notice of forfeiture recorded between January 1, 1978, and May 1, 1978. After a bench trial, judgment was entered in favor of defendant.

• 1 In this appeal, we must first determine whether plaintiff's default terminated the rights and obligations of the parties under the agreement. In the instant case, plaintiff's failure to timely tender performance by paying the second installment due under the terms of the agreement clearly constituted a default. However, a purchaser's default, absent a valid exercise of a seller's option to declare a forfeiture, will not extinguish the parties' duties to perform under the contract. (Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821.) It is not the default itself but rather the exercise of the option after purchaser's default which serves to terminate the contract. (Lang v. Parks (1960), 19 Ill.2d 223, 166 N.E.2d 10.) A seller must immediately exercise his contractual remedies for default in order to terminate his obligations under the contract. (Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821.) Otherwise, the contract remains in effect. (O'Malley v. Cummings (1967), 86 Ill. App.2d 446, 229 N.E.2d 878.) Moreover, a seller's right to declare a forfeiture might be deemed waived. (O'Malley; Forest Preserve Real Estate Improvement Corp. v. Miller (1942), 379 Ill. 375, 41 N.E.2d 526.) Under the foregoing authority it is clear that plaintiff's default alone did not terminate the agreement. Defendant had to properly exercise his right to forfeiture to authorize his nonperformance and entitle him to retain the payment. Therefore, we must examine whether defendant's actions were sufficient to declare a forfeiture under the contract.

When a party to an installment real estate contract attempts to declare a forfeiture, the proper method is to follow the provisions in the contract. (Tobin v. Alexander (1978), 63 Ill. App.3d 397, 380 N.E.2d 45; Kelly v. Germania Savings & Loan Association (1963), 28 Ill.2d 591, 192 N.E.2d 813.) In this case, the installment agreement specified the following forfeiture procedure:

"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, ...


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