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Ferrara v. Collins





Appeal from the Circuit Court of De Kalb County; the Hon. Carl A. Swanson, Judge, presiding. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Following trial on plaintiffs' complaint for declaratory judgment, accounting, injunction against forfeiture, and damages, and on defendant's counterclaim for forcible entry and detainer, judgment was entered against plaintiffs on their complaint and in favor of defendant on her counterclaim for forcible entry and detainer. Plaintiffs have appealed that judgment.

Plaintiffs, Richard A. Ferrara and Howard A. Diercks, entered into a contract to purchase certain commercial property from defendant, Gertrude Collins. A closing meeting for this sale was held on January 15, 1980. The instant dispute arises from that closing and the resolution reached, if any, by the parties concerning credits for rents, utilities, attorney fees and taxes. The dispute climaxed in April 1980 when plaintiffs asked defendant about payment on the anticipated 1979 property taxes. Defendant refused to pay the 1979 tax bill on the grounds that as a result of the agreement reached at closing concerning credits, she owed the plaintiffs no further money. Plaintiffs, to the contrary, claimed that they had credits due for rents and advised defendant that they would withhold the contract installments for May and June 1980 for the purpose of paying the 1979 real estate taxes. When the monthly installment for May was not made, the defendant, on May 13, 1980, served a notice of default on plaintiffs. Among other things, the notice advised the plaintiffs that they were in default for failure to make the May 1 monthly payment, and that it was the intent of the defendant to declare a forfeiture if the default was not corrected within 35 days.

On June 17, plaintiffs filed their lawsuit and defendant answered and counterclaimed for possession under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 13). On July 13, 1980, plaintiffs were served with a declaration of forfeiture by defendant on the grounds that plaintiffs had failed as of that date to make May and June installment payments on the contract. Plaintiffs did not make any monthly payments on the contract during the months of May and June of 1980, but during the pendency of the lawsuit did thereafter make payments in July, August, September and November of 1980, and January, February, April and May of 1981. The trial court, in its judgment order, found inter alia, that as of June 26, 1981, the plaintiffs were in arrears on their monthly payments, as per the articles agreement, in the sum of $5,731, together with interest for late payment of $981.84.

Before considering the issues raised by the plaintiffs on this appeal, we first note that the defendant's assertion regarding the failure of the record to demonstrate that plaintiffs have standing to bring this appeal is, under the state of this record, without merit.

• 1, 2 With reference to their action for an accounting, plaintiffs contend that the trial court erred in finding that all prorations were agreed at the January 15, 1980, closing and plaintiffs were not entitled to an accounting. Citing Nieberding v. Phoenix Manufacturing Co. (1961), 31 Ill. App.2d 350, plaintiffs correctly concede that whether a party has established a cause of action for an accounting is a question of fact for the court, and the court's finding on the question will not be disturbed unless it is against the manifest weight of the evidence. (31 Ill. App.3d 350, 356.) Plaintiffs then proceed to urge that the more believable testimony did establish, by the manifest weight of the evidence, their right to an accounting. Our review of the record indicates that there was sufficient, credible evidence presented for the trial court to conclude that the parties had finalized the closing accounts. Factual support for the trial judge's conclusion was so extensive that he opined that the plaintiffs' request for a formal accounting had been, in substance, fulfilled. In an equitable proceeding it is largely a matter within the discretion of the trial court as to whether an accounting will be ordered. (Bung-Orn Netisingha v. End of the Line, Inc. (1982), 107 Ill. App.3d 275, 278; Dailey v. Sunset Hills Trust Estate (1975), 30 Ill. App.3d 121, 125.) No precise guidelines exist for determining when an accounting is warranted, since the right depends upon the circumstances of the particular case and the relief sought. (30 Ill. App.3d 121, 125.) The trial court did not abuse its discretion in denying an accounting, and its finding in this regard is not against the manifest weight of the evidence.

• 3 Plaintiffs principal contention on appeal is that the trial court erred in entering its contract forfeiture order and granting possession to defendant because defendant, by her conduct, had waived her right to declare a forfeiture of plaintiffs' rights under the articles of agreement between the parties. We are unpersuaded by defendant's initial argument that the trial judge abused his discretion in allowing this issue to be raised by an amended pleading. The granting of leave to amend pleadings rests in the sound discretion of the trial court and the record presented on this appeal does not reveal an abuse of that discretion. Intini v. Schwartz (1979), 78 Ill. App.3d 575, 579; Ill. Rev. Stat. 1981, ch. 110, pars. 2-616(a),(c).


• 4 The merits of plaintiffs' waiver argument can be divided into two branches. Plaintiffs' initial argument is that defendant, by her acceptance of tardy monthly payments prior to May 1980, waived her right to declare a forfeiture because of a delinquent May installment. This contention has no merit. First, it was not raised in the trial court and therefore cannot be raised for the first time on appeal (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147); secondly, it has no application under the facts of this case. Plaintiffs' theory of waiver applies when the contract seller, having established a pattern of accepting late payments and lulling buyer into a belief that such late payments would be accepted, refuses to accept a subsequent late payment and declares a forfeiture. (Kingsley v. Roeder (1954), 2 Ill.2d 131, 139.) This theory has no application in a case such as the present one, where the buyers were not merely tardy in paying installments but deliberately suspended payments for May and June of 1980. See Hartman v. Hartman (1973), 11 Ill. App.3d 524.


• 5 The second and critical basis of plaintiffs' waiver argument was that defendant, by her acceptance of numerous contract payments after her declaration of forfeiture and during the pendency of the litigation, is estopped from proceeding on her forcible entry and detainer action. The gist of plaintiffs' case is that "equity abhors a forfeiture" and a court must give land purchasers the benefit of any possible equitable relief to avoid such a harsh result. (See Allabastro v. Wheaton National Bank (1979), 77 Ill. App.3d 359; Krentz v. Johnson (1976), 36 Ill. App.3d 142; Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App.3d 642.) Plaintiffs argue that a provision for forfeiture should be deemed waived if the seller subsequently accepts contract payments after notice of forfeiture. Zeta Building Corp. v. Garst (1951), 408 Ill. 519, 524.

Illinois precedent states that whether a real estate seller's conduct constitutes a waiver of contract forfeiture rights is ordinarily a question of fact. (Aden v. Alwardt (1979), 76 Ill. App.3d 54, 60; Brown v. Jurczak (1947), 397 Ill. 532, 545.) The law governing this factual determination begins from the touchstone that courts> of equity recognize the right of competent parties to incorporate forfeiture provisions in their contracts and will give effect to such clauses whenever declared in the manner prescribed by contract. MacDonald v. Barlett (1927), 324 Ill. 549, 558; Eade v. Brownlee (1963), 29 Ill.2d 214, 219; Allabastro v. Wheaton National Bank (1979), 77 Ill. App.3d 359, 366.

• 6 The court in Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App.3d 642, succinctly summarized the guiding principles of the relevant body of law as follows:

"Courts> of equity recognize the right of parties to incorporate forfeiture provisions in contracts. However, equity will only permit a forfeiture where the right is clearly and unequivocally shown. If the forfeiture was properly declared, no subsequent performance, or offer to perform, no matter how strictly in compliance with the terms of the contract, will relieve the offending party from a forfeiture. Kingsley v. Roeder, 2 Ill.2d 131, 117 N.E.2d 82.

The foregoing notwithstanding, forfeitures are not favored by courts> of equity. Purchasers will be protected against forfeiture to prevent wrong or injustice. This is especially true where the agreement is simply one for the payment of money. A forfeiture of land caused by the nonperformance of the agreement will be set aside on behalf of the defaulting party or other relief granted on the payment of the debt with interest and costs, unless the purchaser ...

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