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Brown v. Goodman

OPINION FILED SEPTEMBER 30, 1986.

DAVID S. BROWN, PLAINTIFF-APPELLANT,

v.

LAWRENCE GOODMAN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

On January 8, 1963, the plaintiff, David S. Brown, entered into a contract with Joseph J. Kuhny for the sale of certain real estate owned by Brown. Under the contract, Kuhny agreed to purchase the subject property and Brown reserved a five-year option to repurchase the property. To exercise that right, Brown was required to notify Kuhny of his intention to purchase and deposit simultaneously with the delivery of the notice of intent a certified check in the sum of $10,000 as earnest money and, within 15 days thereafter, deposit additional earnest money of $40,000. The option agreement provided that a sale to a third party shall specifically be subject to Brown's right of purchase. The contract and option agreement were recorded.

On October 23, 1964, the property was sold by Kuhny to the defendant, Lawrence Goodman. The contract between Goodman and Kuhny refers to the option rights of Brown and states that the sale is subject to Brown's option rights under the 1963 option agreement. Brown was notified by Kuhny of the sale to Goodman but did not attempt to exercise the option at that time.

On January 8, 1968, within the five-year period, Brown appeared at the offices of Goodman with a certified check for $10,000. Brown delivered the check to Goodman along with his notice of intent to purchase, which stated as follows:

"Mr. L. Goodman c/o Portland Investment Company 2800 North Milwaukee Avenue Chicago, Illinois

Dear Mr. Goodman,

Re: NOTICE OF INTENT TO PURCHASE

Pursuant to the terms of contract dated January 8, 1963 between David S. Brown and Joseph J. Kuhny I hereby notify you of my intention to purchase the property referred to in said contract and in all the documents referred to therein and I deposit with you herewith my certified check payable to you in the amount of $10,000. This is sent to you as successor in title to Joseph J. Kuhny.

Yours truly, /s/ David S. Brown David S. Brown 4739 N. Harding Avenue Chicago 25, Illinois

encl. $10,000 ck."

At the time Brown delivered the $10,000 check, he instructed an employee of Goodman to type the following statement on the reverse side of the check:

"Earnest money deposit paid per Supplemental Agreement dated January 8, 1963, between David S. Brown and Joseph J. Kuhny."

Two weeks later, on January 19, 1968, Brown again appeared at Goodman's offices with $40,000 in additional earnest-money checks, each of which was unendorsed and payable to Brown and contained the following language on the back of each check:

"Additional earnest money deposit paid per supplemental agreement dated January 8, 1963 between David S. ...


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