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Rosin v. First Bank of Oak Park





Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.


Plaintiff, Joseph A. Rosin, brought suit to specifically enforce a contract for the sale of land bought at auction. At trial, at the close of plaintiff's case, defendants' motions for judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2-1110) were granted on the ground that plaintiff had not presented enough evidence to make out a prima facie case on a contract.

On appeal, plaintiff claims that (1) he presented sufficient evidence to establish a prima facie case of the existence of a contract arising out of an auction of real estate, and (2) the trial court erred in not weighing the evidence before ruling on defendants' motions for judgment at the close of plaintiff's case.

We affirm the decision of the trial court.


Continental Bank was the holder of a first mortgage lien on a 6.5 acre commercial site in Libertyville, Illinois. After the loan went into default and the mortgagor subsequently died, the mortgage indebtedness to Continental exceeded $700,000.

In April 1983, Continental and the representative of the estate of the mortgagor agreed to allow Real Estate Auctions, Inc., to offer the property for sale at public auction to satisfy the mortgage indebtedness. Accordingly, while legal title to the property remained with First Bank of Oak Park under a land trust, Continental's nominee took an assignment of the beneficial interest in the property in exchange for a release of the mortgagor's estate from liability on the mortgage loan. The agreement documenting the release and conveyance reflected a $595,000 "current appraised value" for the property and an outstanding indebtedness of $834,591.80 owed to Continental.

Real Estate Auctions proceeded to arrange for the sale and to prepare and distribute an advertising brochure that announced the sale, described the various parcels to be sold at auction and the financing available, and set forth the terms of the sale as follows:

"2. The final high bid on * * * the 6.5 acres in Libertyville will be offered with reserve. These bids must be irrevocable for 24 hours and subject to seller's acceptance. * * * The seller on Libertyville reserves the right to reject the high bid by the payment of $1,500 to the high bidder who signs contract.

* * *

5. Announcements made by Auctioneer at time of sale will take precedence over printed matter. Conduct of auction and increments of bidding at the discretion of the Auctioneer." (Emphasis in original.)

On April 23, 1983, the night of the auction, not only were copies of the advertising brochure available to bidders, but a "green sheet" listing all the parcels was provided for the use of bidders in keeping track of the bidding. The front of the "green sheet" described the auction procedure, noted that one-half of all the lots offered were to be sold without reserve, and concluded by stating that the remaining lots were offered for sale subject to the sellers' acceptance or rejection within 24 hours after the close of the auction.

Between 500 and 700 people attended the auction, among whom were Joseph A. Rosin, owner of the parcel of land adjacent to the Libertyville property up for sale, and his friend, Irving Drobny, who was present for the specific purpose of bidding on Rosin's behalf. The Libertyville property was called for auction by Bruce Sayre, the auctioneer, at approximately 10 p.m. Although the auction was recorded on tape, the beginning of Sayre's call of the Libertyville property occurred while the tape was being changed. However, various plaintiff's witnesses testified that Sayre, after describing the property, the available financing, and the general terms of sale, went on to announce the "Dutch" auction method to be used for the Libertyville property.

According to the witnesses, Sayre also said that the owner had (1) a right to reject the high bid within 24 hours or (2) the right to "buy back" (a) the property or (b) the contract within the same time by the tender of a check for $1,500. The recording resumed with the "Dutch" auction itself. Sayre started the bidding at $800,000, and then, as no bids were forthcoming, lowered the requested amount by $50,000 reductions until, when he called for $500,000, Drobny bid $300,000. When no other bids were made, Sayre knocked down the parcel to Drobny, calling out, "Sold, subject to seller's acceptance." Drobny was then escorted by an employee of the auctioneer to ...

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