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09/08/88 Dwayne Mcgill Et Al., v. Wire Sales Company

September 8, 1988

DWAYNE MCGILL ET AL., PLAINTIFFS-APPELLEES

v.

WIRE SALES COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

529 N.E.2d 682, 175 Ill. App. 3d 56, 124 Ill. Dec. 701 1988.IL.1354

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

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiffs, Dwayne and Thomas McGill, are lessees under a lease with defendant, the Wire Sales Company, the lessor. Plaintiffs brought an action in the circuit court of Cook County against defendant. Plaintiffs sought the specific performance of a lease provision granting them the option to buy the leased property. The trial court granted plaintiffs' motion for summary judgment and denied that of defendant on the issue of specific performance. Defendant appeals, contending that the trial court erred in granting summary judgment for plaintiffs.

We affirm the judgment of the trial court.

Background

The record contains the following undisputed facts. On August 30, 1983, plaintiffs and defendant signed a standard form lease for residential property located at 5433 South Keating Avenue, in Chicago, Illinois. The term of the lease was from November 1, 1983, through November 1, 1986, with the rent set at $250 per month. The lease required plaintiffs to maintain the premises in compliance with all local ordinances. The lease granted defendant the right to terminate the agreement at any time without notice, upon default by plaintiffs in either the payment of rent or under any other covenant. The lease provided that if fire or other disaster rendered the premises untenantable, defendant had the option to either terminate the lease, or to repair the premises within 30 days. If defendant failed to repair the premises within 30 days, or fire destroyed the premises, the lease automatically ended.

The parties attached a "rider" to the lease agreement. Through the rider, the lease further required plaintiffs to keep the premises insured against fire and other risks. Additionally, if plaintiffs were not in default of any lease provision, the lease granted plaintiffs the option to purchase the premises, at any time during the term of the lease, on the conditions set forth in an attached real estate contract.

A fire occurred on or about June 12, 1985. The house was damaged substantially, rendering it untenantable. The record further shows that on June 13, 1985, Fred J. Schaeflein, an officer of defendant, learned of the fire. Schaeflein called Wayne McGill, who is plaintiffs' father and who acted on their behalf. McGill told Schaeflein that plaintiffs had insurance covering the fire loss. McGill subsequently filed a claim with the insurance company.

Plaintiffs did not pay any rent during the months of July, August, September, October and November. In early October 1985, Schaeflein received a citation from the Department of Inspectional Services of the City of Chicago. Defendant was charged with violating several municipal ordinances. Schaeflein immediately telephoned McGill and informed him of the citation and the alleged violations. McGill told Schaeflein that he would take care of the problem. McGill received a copy of the citation that day.

On November 6, 1985, defendant was served with a complaint in City of Chicago v. Wire Sales Co., No. 85 -- M1 -- 406441. The complaint charged defendant with violating the same municipal ordinances alleged in the citation from the department of inspectional Services. On November 11, 1985, Schaeflein and defendant's attorney met with McGill. It is unclear from the record exactly what occurred at this meeting. It is undisputed, however, that the parties did not agree on a solution.

On November 15, 1985, defendant notified plaintiffs by letter that it had elected to terminate the lease, effective immediately. Defendant declared a forfeiture based on plaintiffs' default under two lease provisions: (1) plaintiffs paid no rent for July through November, and (2) plaintiffs failed to maintain the premises in compliance ...


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