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08/30/89 Mercantile Holdings, Inc., v. Charles Keeshin Et Al.

August 30, 1989

MERCANTILE HOLDINGS, INC., PLAINTIFF

v.

CHARLES KEESHIN ET AL., DEFENDANTS (THOMAS CHUHAK, ADM'R WITH THE WILL ANNEXED OF THE ESTATE OF ELSIE KEESHIN, DECEASED, COUNTERPLAINTIFF-APPELLANT; BENJAMIN

SCHAIDER ET AL., INDI

v.

AND AS PARTNERS D/B/A AMERICAN FARM PARTNERSHIP, ET



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

al.,

Counterdefendants-Appellees)

No. 1-88-0590

543 N.E.2d 1031, 187 Ill. App. 3d 1088, 135 Ill. Dec. 463 1989.IL.1346

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Mercantile Holdings, Inc., filed suit in the circuit court of Cook County to obtain payment of a loan made by its predecessor in interest, Mercantile National Bank of Chicago (Mercantile), to Charles and Elsie Keeshin. Plaintiff joined as defendants in that suit Charles and Elsie, Benjamin Schaider and Seymour Keeshin (Schaider and Keeshin), individually and d/b/a American Farm Partnership , and City National Bank & Trust Company of Rockford . Upon Elsie's death, Thomas Chuhak, as the administrator of her estate, was substituted as a party defendant. Chuhak (hereinafter counterplaintiff) then filed a counterclaim against Schaider and Keeshin, individually and d/b/a AFP, and CNB. After plaintiff settled its claims against Schaider and Keeshin and agreed to dismiss its action against all defendants, the trial court: (1) granted counter-defendants summary judgment on the counterclaim; (2) denied counterplaintiff summary judgment; and (3) denied counterplaintiff's motion to reconsider. From these orders, counterplaintiff appeals.

In 1974, Mercantile loaned Charles and Elsie $125,000. The loan was secured by marketable securities owned by Elsie. In 1978, Charles assigned all of his beneficial interest in CNB land trust No. 1097 to AFP subject to certain debts which AFP assumed and agreed to pay, including the Mercantile loan. Charles also agreed to direct CNB to deliver a trustee's deed of the trust res to AFP upon satisfactory proof of payment of all the debts assumed by AFP. Subsequently, upon Charles' direction, CNB did issue its trustee's deed to AFP.

In the complaint dismissed pursuant to its settlement with Schaider and Keeshin, plaintiff had alleged Schaider's and Keeshin's breach of the assignment agreement with Charles in that they did not pay the debt due plaintiff before obtaining the trustee's deed from CNB. Plaintiff also alleged CNB's breach of the letter of direction from Charles to convey the trust res to Schaider and Keeshin in that it issued its trustee's deed to them without first receiving the satisfactory proof, required by the assignment agreement, of their payment of the debt owed plaintiff.

In his counterclaim, counterplaintiff alleged that Mercantile sold the securities owned by Elsie, which it held as collateral for the loan to Elsie and Charles, due to Schaider's and Keeshin's failure to pay the debt as required by the assignment agreement. Counterplaintiff also alleged, like plaintiff, that CNB breached the terms of the letter of direction from Charles by issuing its trustee's deed without the proof required by the assignment agreement of payment of the debt owed plaintiff. Counterplaintiff's theory of recovery against counter-defendants was that Elsie was a third-party beneficiary of both the assignment agreement and the letter of direction.

Counterdefendants denied the material allegations of the counterclaim. They also asserted several affirmative defenses to the counterclaim. Schaider and Keeshin asserted, inter alia, that Charles, Seymour Keeshin and Geraldine Schaider entered into a loan repayment agreement with Elsie and her son, Jerome L. Kohn. They alleged that in that agreement Elsie forgave repayment of various loans to Charles in the amount of $250,000 in exchange for Charles' conveyance to Elsie of his interest in a condominium which they owned as joint tenants.

Both counterdefendants and counterplaintiff eventually moved for summary judgment. In granting counterdefendants' motion and denying counterplaintiff's motion, the trial court reasoned that counterplaintiff was estopped from enforcing the assignment agreement between Charles and Schaider and Keeshin because Elsie's estate had received the benefit of the loan repayment agreement. The court also reasoned that CNB, as land trustee, owed no duty and therefore breached no duty to Elsie in conveying the property held in trust for Charles to Schaider and Keeshin without first obtaining the proof of payment required by the assignment agreement.

On appeal, counterplaintiff first contends that he is entitled to summary judgment as a matter of law against Schaider and Keeshin because they breached the assignment agreement with ...


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