APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
530 N.E.2d 581, 176 Ill. App. 3d 260, 125 Ill. Dec. 423 1988.IL.1583
Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
Plaintiffs-appellants (Calvettis) appeal from the order of the trial court allowing the motion to dismiss of defendants-appellees (Crismores) and denying the Calvettis' motion to reconsider. The questions raised are on the pleadings.
The Calvettis, as sellers, and Crismores, as buyers, entered into an agreement for warranty deed dated July 30, 1982, whereby the Calvettis sold their interest in rental property located in Peoria County to the Crismores. An amended agreement for warranty deed (agreement) was executed on August 22, 1986. By the terms of the agreement, the Crismores were to pay the purchase price of $302,000 in monthly installments, after which the Calvettis were to deliver a warranty deed to the Crismores.
On April 7, 1987, the Calvettis filed a complaint for specific performance alleging that the Crismores had failed to make payments due on March 1, 1987, and April 1, 1987. On July 2, 1987, the Calvettis, by grant of court, filed an amended complaint seeking the balance due under the contract plus attorney fees. The Crismores filed a motion to dismiss, pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619), alleging that the action was barred because the Calvettis had elected the remedy of forfeiture of the agreement. The trial court, by order dated August 6, 1987, granted the Crismores' motion. The Calvettis' motion to reconsider was subsequently denied by order dated December 11, 1987.
The procedural issue is whether the trial court erred in granting the Crismores' motion to dismiss and in denying the Calvettis' motion to reconsider. In determining the procedural issue, we must consider the question of whether, under the facts as alleged in the pleadings, affidavits and depositions on record, the Calvettis, by their actions, elected the remedy of forfeiture, thus precluding any recovery for money damages under a suit for specific performance.
It is well settled in Illinois law that an election of the remedy of forfeiture forecloses the possibility of pursuing money damages for payments owed under an installment contract. (Dahm, Inc. v. Jarnagin (1985), 133 Ill. App. 3d 14, 478 N.E.2d 641; Benedetti & Sons, Inc. v. O'Malley (1984), 124 Ill. App. 3d 500, 464 N.E.2d 292.) If the contract provides a procedure for forfeiting the contract, however, the party forfeiting the contract must do so in the manner so provided. Dahm, 133 Ill. App. 3d at 15, 478 N.E.2d at 643.
Three paragraphs of the agreement are relevant to the issue presented. Paragraph 3 provides:
"In the event of failure of the . . . [Crismores] . . . to make either of the payments or any part thereof, or perform any of the covenants hereof on the part of . . . [the Crismores] . . . hereby made and entered into, this contract shall, at the option of . . . [the Calvettis] . . ., be forfeited and determined, and . . . [the Crismores] . . ., shall forfeit all payments made on the contract and such payments shall be retained by . . . [the Calvettis] . . . in full satisfaction and in liquidation of all damages . . . [the Calvettis] . . . sustained, and . . . [the Calvettis] . . . shall have the right to re-enter and take possession of the premises aforesaid."
"[The Crismores] . . . also agreethat if there is any default in any payments hereunder, the . . . [Calvettis] . . . may at their option re-enter and collect rents and ...