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05/19/94 ROBERT BARKER AND THEODORE LIEBLICH v.

May 19, 1994

ROBERT BARKER AND THEODORE LIEBLICH, PLAINTIFFS-APPELLEES,
v.
LEWIS LEONARD, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ROBERT V. BOHARIC, PRESIDING.

Rehearing Denied June 22, 1994. Released for Publication July 14, 1994. As Corrected September 15, 1994.

Johnson, Hoffman, Theis

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiffs, Robert Barker and Theodore Lieblich (hereinafter collectively Barker), entered into an agreement with defendant, Lewis Leonard, to sell their rights to an apartment project. Barker had previously purchased the rights to the project from the Saul Cohen Management Corporation (hereinafter seller). Under Barker's agreement with Leonard, Leonard agreed to pay him the acquisition cost of the property, the anticipated renovation cost, and the cost of Barker's rights to the property. Leonard failed to obtain the necessary financing and Barker filed a breach of contract action in the circuit court of Cook County based on Leonard's failure to pay the amount due under the agreement. After a bench trial, the trial courtentered a judgment order in the amount of $634,362.07 in favor of Barker.

On appeal, Leonard contends the trial court erroneously found that he waived a condition precedent in the parties' agreement whereby he was only obligated to Barker after he obtained the necessary financing to acquire the property, to rehabilitate the property, and to pay Barker.

We affirm.

On August 6, 1986, Barker purchased the rights to the Marina Dunes Apartment complex (hereinafter the property) from the seller for $1,508,000. In November of that year, Barker engaged in Discussions with Leonard regarding Leonard's possible acquisition of the property from the seller.

On January 22, 1987, Leonard entered into a written agreement (hereinafter agreement I) to purchase the property from the seller for $1,690,972 wherein the seller agreed to provide partial financing via two mortgages totalling $765,000. Leonard obtained a mortgage on his home to secure the balance of the purchase price. The closing date of this agreement was June 3, 1987, at which time Leonard acquired the property.

Five days after agreement I was executed, Leonard entered into a separate agreement (hereinafter agreement II) with Barker. Agreement II obligated Leonard to pay Barker "$2,200,000 less any and all costs incurred to acquire the Premises * * *" and Barker was to receive this amount at closing "provided that Leonard obtain a mortgage loan in the amount of $4,500,000 * * *." If this financing was not obtained, clause 5 obligated Leonard to pay Barker as follows:

"1. $150,000 in cash at closing.

2. One-half the remaining balance within five months after closing.

3. The balance, if any, on or before ...


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