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09/04/87 Claude Bailey, v. Herbert L. Hedgeman

September 4, 1987

CLAUDE BAILEY, PLAINTIFF-APPELLEE

v.

HERBERT L. HEDGEMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

513 N.E.2d 993, 160 Ill. App. 3d 402, 12 Ill. Dec. 384 1987.IL.1290

Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

Plaintiff, Claude Bailey, filed a complaint in forcible entry and detainer to oust defendant, Herbert L. Hedgeman, a contract purchaser. The trial court entered an order on December 2, 1986, awarding plaintiff possession of the real estate, although staying enforcement of the order 30 days from November 26, 1986. Defendant appeals the order for two reasons: (1) that plaintiff's demand for possession was inadequate at law and (2) that the court improperly denied taking into consideration allegations of plaintiff's breach of contract as possible defenses. The relevant facts are as follows.

Plaintiff and defendant entered into a contract for the sale of real estate on January 20, 1986. Other items of personal property were included in the contract, along with terms and conditions pursuant to the sale of such personal property.

Plaintiff testified that an initial contract payment was made in February of 1986, but that no other required payments had been received by him from the defendant; moreover, that on May 9, 1986, plaintiff notified defendant of his intention to declare a forfeiture followed by a declaration of forfeiture dated July 21, 1986. Subsequently plaintiff caused a demand for possession to be served upon the defendant by certified mail c/o The Sportsman Inn in Chicago, Illinois. Plaintiff admitted at trial that he did not know who the person was that signed the return receipt of the demand and did not know if that person was authorized to receive notices on behalf of defendant. He indicated, however, that the person who signed the return receipt had been introduced to him at one time as defendant's bookkeeper.

Plaintiff was questioned regarding his compliance with the purchase contract. He testified that he had not assigned all leases to defendant, including the lease agreement with Images Restaurant, which was the lessee of the motel that defendant purchased. Plaintiff also testified that an inventory and bill of sale were to be prepared and presented to the defendant under the contract; that the inventory had been delivered to defendant, but it did not include the serial numbers of the equipment sold. Similarly, no bill of sale had been delivered nor had plaintiff provided any tax records or depreciation schedules for the inventory transferred.

Chester O. Hale (Hale) testified on behalf of defendant. Hale was acting manager of the motel purchased by defendant and was familiar with the day-to-day operations of the business. Hale stated that problems had developed with the Images Restaurant lease and plaintiff, upon numerous requests, failed to execute an assignment of the Images lease to defendant. Moreover, Images subsequently vacated the property and took a substantial amount of restaurant equipment belonging to defendant, which could not be recovered because plaintiff's inventory failed to provide serial numbers and proper descriptions of the personal property transferred. Hale further testified that because defendant was unable to recover the lost inventory for lack of proof of ownership, the restaurant could not be immediately reopened and defendant suffered damages as a result.

Plaintiff objected to the testimony concerning the lease assignment and other contractual problems complained of by defendant. The court, upon reviewing the matter, sustained plaintiff's objection, holding that the contract did not require an assignment of the lease and also that the other matters raised regarding plaintiff's performance under the contract did not go to the issue of possession of the real estate and, therefore, were not germane to the forcible entry action then pending. The trial court thus refused to consider any of defendant's claims.

Two issues are before this court: (1) whether plaintiff's demand for possession was adequate at law, and (2) whether the trial court properly refused to consider defendant's allegations of plaintiff's breach of contract as defenses to the action. We will consider the second issue first, as our decision on that issue will resolve any question regarding the sufficiency of plaintiff's demand for possession.

Regarding issue 2, plaintiff argues, as the trial court ruled, that the inventory and bill of sale were matters beyond any possessory right to the real estate and, therefore, not a proper subject for a forcible entry and detainer action.

Plaintiff cites the Illinois Supreme Court cases of Clore v. Fredman (1974), 59 Ill. 2d 20, 319 N.E.2d 18, and Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833, for the proposition that the purpose of the rule excluding nongermane matters is to prevent collateral matters from being litigated in a possessory action. We agree with the proposition; however, ...


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