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Thread & Gage Co. v. Kucinski

OPINION FILED JUNE 27, 1983.

THREAD AND GAGE COMPANY, INC., PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

BRUNO KUCINSKI, DEFENDANT-APPELLANT AND CROSS-APPELLEE — (BRUNO KUCINSKI, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

CHAIN O'LAKES GAME CORPORATION, DEFENDANT-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 1, 1983.

This appeal arises out of an action brought by Bruno Kucinski against Chain O'Lakes Game Corporation (now doing business as Thread and Gage Company, Inc.) *fn1 alleging breach of contract and seeking damages and interest allegedly due him. Chain O'Lakes denied liability and, under the new corporate name of Thread and Gage Company, Inc. (Thread and Gage), countersued Kucinski in equity for specific performance. The trial court entered judgment in favor of Thread and Gage for specific performance and granted judgment to Kucinski in the sum of $20,000 plus 5% interest from September 1, 1962. Kucinski appeals the amount of damages and the granting of specific performance, and Thread and Gage cross-appeals.

The record reveals that prior to December 21, 1961, Deno Buralli was the owner of an Illinois corporation known as Chain O'Lakes Game Field Corporation. For many years prior thereto, Bruno Kucinski and his family owned and operated a business known as Thread and Gage Company, Inc., which specialized in thread grinding for aircraft parts and high precision machines. The business consisted of a parcel of improved real estate in Schiller Park, Illinois, owned by Kucinski in his own name and various items of machinery owned by two corporations which Kucinski controlled, namely, Thread and Gage Company, Inc., and B.K. Machine Leasing Company. Buralli worked for Kucinski for several years as a manufacturer's representative.

On December 21, 1961, the parties executed a series of agreements to effectuate the sale of Kucinski's business to Buralli's corporation, Chain O'Lakes. The first agreement provided for the sale of the assets of B.K. Machine Leasing Company for $25,000; $5,000 down and the $20,000 balance payable in monthly installments of $250 or more a month commencing on September 1, 1962, with no interest being charged on the principal unless there was a delinquency in any of the installments and, if so, then a charge of 5% interest per annum on the principal, payable each month. The agreement included a list of certain items of machinery that were covered under this particular transaction.

The second agreement between Kucinski and Buralli, as agent for Chain O'Lakes, covered the sale of the assets of Thread and Gage Company, Inc. The agreement stipulated that the $100,000 purchase price was to be satisfied by Chain O'Lakes' payment of $10,000 down and installment payments totaling $90,000 under an installment plan with terms identical to the first agreement. A separate list of machinery was also included under this agreement.

A third agreement was on a form entitled "Articles of Agreement for Warranty Deed" (warranty deed agreement), whereby Kucinski undertook to sell certain real estate located in Schiller Park, Illinois, to Chain O'Lakes. The agreement provided that the purchase price for the real estate was $75,000; $5,000 down and the $70,000 balance to be paid in monthly installments of $500 or more commencing on September 1, 1962, with no interest charged on the principal unless there was a delinquency in payment and, if so, then 5% was to be charged on the principal balance until the delinquent installment was paid.

The parties further agreed that Kucinski's corporation was to release the corporate name of Thread and Gage Company, Inc., to permit Chain O'Lakes to assume the name. After the documents were signed and the various downpayments were made, a dispute arose between the parties over the fact that certain items of machinery sold to Chain O'Lakes under the B.K. Machine Leasing Company agreement (BKML agreement) were also included under the agreement covering machinery belonging to Kucinski's former Thread and Gage corporation (Thread and Gage agreement). On September 1, 1962, when the first installment payments were due under the three agreements (a total of $1,000; $250 under the BKML agreement, $500 under the warranty deed agreement, and $250 under the Thread and Gage agreement), Buralli, on behalf of Chain O'Lakes, refused to make the $250 payment due under the BKML agreement. Additionally, Buralli testified that he informed Kucinski no future payments would be made under that agreement.

Each month thereafter, Thread and Gage (formerly Chain O'Lakes) made installment payments to Kucinski in the sum of $750, rather than the $1,000 due under all three agreements. The monthly checks were either cashed or deposited by Kucinski.

On May 20, 1969, an attorney, acting on behalf of Kucinski, sent a letter to Thread and Gage requesting payment of $20,000 plus 5% interest, which was claimed due for the machinery covered under the BKML agreement. Thread and Gage, however, continued in its repudiation of the agreement, sending monthly checks in the sum of $750 instead of $1,000.

On March 27, 1973, Kucinski filed a complaint at law, seeking $250 per month, plus interest from September 1, 1962, to February 1, 1973, or a total of $31,250. In its answer, Chain O'Lakes denied liability and on January 10, 1975, countersued Kucinski in equity for specific performance of the articles of agreement for warranty deed. The suit for specific performance alleged that the $75,000 purchase price set forth in the warranty deed agreement had been paid and that Thread and Gage was, therefore, entitled to the deed.

On December 21, 1976, Kucinski amended his complaint at law and alleged, for the first time, that the failure of Thread and Gage to make payments under the BKML agreement constituted a breach of the other two agreements, thereby triggering interest from September 1, 1962, for the combined balance of all the agreements. The amended complaint sought damages in the sum of $196,000 plus 5% interest.

The trial court found that "all of the documents were in fact executed at one time" and "did in fact constitute one transaction." The trial court further determined that the transaction was to be completed by Chain O'Lakes (the present Thread and Gage) in three separate phases: (1) purchase of the realty under the warranty deed agreement; (2) purchase and payment of the agreement wherein the former Thread and Gage sold all of its assets to Buralli or his nominee; and (3) payments to be made under the BKML agreement.

The trial court further found that the present Thread and Gage was in compliance with the terms and conditions of the first two phases, but that it breached phase three of the transaction in failing to pay the first installment due September 1, 1962, under the BKML agreement. Accordingly, the court awarded judgment to Kucinski in the sum of $20,000 plus 5% interest from September 1, 1962. Upon payment of this judgment, the court ordered Kucinski to specifically perform under the warranty deed agreement and ...


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