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08/16/89 Alphonso Farmer, v. Charles Koen

August 16, 1989

ALPHONSO FARMER, PLAINTIFF-APPELLANT

v.

CHARLES KOEN, DEFENDANT-APPELLEE. -- ALPHONSO FARMER, PLAINTIFF-APPELLANT,

v.

UNITED STATES FIDELITY AND GUARANTY COMPANY, DEFENDANT-APPELLEE (CHARLES

KOEN, INDI

v.

AND D/B/A CHARLES KOEN & ASSOCIATES, NOMINAL, DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

542 N.E.2d 1326, 187 Ill. App. 3d 47, 134 Ill. Dec. 819 1989.IL.1263

Appeal from the Circuit Court of Alexander County; the Hon. Stephen Spomer, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. LEWIS and HARRISON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

These consolidated cases arise out of a fire which destroyed a bank building in Cairo, Illinois, on September 19, 1985. The building was owned by Charles Koen and Associates, a corporation formed by the defendant, Charles Koen, and the plaintiff, Alphonso Farmer. The building was insured by United States Fidelity and Guaranty Company , the defendant in appeal No. 5 -- 87 -- 0699. Prior to the fire, on August 25, 1985, Koen and Farmer entered into an agreement whereby Koen purchased Farmer's interest in Charles Koen and Associates for a total price of $58,000. The agreement provided that the $58,000 was payable one year after execution of the agreement or:

"B. If the $58,000 is not paid on August 22nd, 1986, then the $58,000 is to be paid as follows: $10,000 on August 22nd, 1986; $10,000 on August 22nd, 1987; $10,000 on August 22nd, 1988; $10,000 on August 22nd, 1989; $10,000 on August 22nd, 1990; and $8,000 on August 22nd, 1991. If any of the above-mentioned dates falls on the weekend, then the payment is due on the following Monday.

C. If the payment of $10,000 is not paid on the mutually agreed upon date, interest as established by the First State Bank of Olmsted will be added to the payment of the $10,000.

D. For any payments that are late the current interest rate of the First State Bank of Olmsted will be added to the late payment. It is understood that this interest rate does not apply to the outstanding principal that exist [ sic ] at that date but only to the late payment.

E. As part of the consideration for the sale and conveyance, Charles Koen agrees to pay all the indebtedness of the Corporation of Charles Koen and Associates, and to hold Al Farmer free from any liability therefrom. II.

A. Retiring owner in consideration of the payment of the sum specified and in consideration of the covenants of continuing owner all as contained in Article I, hereby sells, assigns, transfers and conveys unto continuing owner all of his part, share and interest in and to all and singular, the leasehold and premises and the machinery and equipment, leasehold improvements, stock-in-trade and other effects, and debts, credits, contracts, profits and assets of every description of the Corporation."

Subsequent to the fire, the plaintiff filed a suit in the circuit court of Alexander County seeking, inter alia, rescission of the agreement based on a mutual mistake of fact. The trial court found that the agreement was enforceable and denied rescission, and this court affirmed. (Farmer v. Koen (1987), 161 Ill. App. 3d 1165 (unpublished Rule 23 order).) Following the circuit court's unfavorable ruling in his initial suit, the plaintiff filed two additional suits which are the subject of this appeal. In No. 5 -- 87 -- 0197, Farmer appeals from the trial court's dismissal of his complaint, which again sought to rescind the agreement between Farmer and Koen, this time based on the allegation that defendant Koen "materially and substantially breached" the agreement by failing to make the first $10,000 payment under the agreement. The trial court found that the remedy of rescission was unavailable and dismissed the complaint based on its finding that the failure to make the first installment payment did not constitute a substantial breach.

In No. 5 -- 87 -- 0699, Farmer filed a complaint against USF&G, seeking to recover under the insurance policy. The trial court dismissed the complaint, finding that Farmer was not a proper party to the suit and he had no standing to bring such an action. The court noted that a suit for breach of an insurance contract is personal in nature ...


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