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04/27/95 TRUMAN L. FLATT & SONS CO. v. SARA LEE

April 27, 1995

TRUMAN L. FLATT & SONS CO., INC., A DELAWARE CORPORATION, PLAINTIFF-APPELLANT,
v.
SARA LEE SCHUPF, RAY H. NEISWANDER, JR., AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 23257, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 93CH159. Honorable Richard J. Cadagin, Judge Presiding.

Rehearing Denied and Released for Publication May 30, 1995. As Corrected May 31, 1995.

Honorable James A. Knecht, P.j., Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, J. Cook and McCULLOUGH, JJ., concur.

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Plaintiff Truman L. Flatt & Sons Co., Inc., filed a complaint seeking specific performance of a real estate contract made with defendants Sara Lee Schupf, Ray H. Neiswander, Jr., and American National Bank and Trust Company of Chicago (American), as trustee under trust No. 23257. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff now appeals from the trial court's grant of the motion for summary judgment. We reverse and remand.

In March 1993, plaintiff and defendants entered a contract in which defendants agreed to sell plaintiff a parcel of land located in Springfield, Illinois. The contract stated the purchase price was to be $160,000. The contract also contained the following provisions:

"1. This transaction shall be closed on or before June 30, 1993, or upon approval of the relief requested from the Zoning Code of the City of Springfield, Illinois, whichever first occurs ('Closing Date'). The closing is subject to contingency set forth in paragraph 14.

14. This Contract to Purchase Real Estate is contingent upon the Buyer obtaining, within one hundred twenty (120) days after the date hereof, amendment of, or other sufficient relief of, the Zoning Code of the City of Springfield to permit the construction and operation of an asphalt plant. In the event the City Council of the City of Springfield denies the request for such use of the property, then this contract shall be voidable at Buyer's option and if Buyer elects to void this contract Buyer shall receive a refund of the earnest money paid."

On May 21, plaintiff's attorney sent a letter to defendants' attorney informing him of substantial public opposition plaintiff encountered at a public meeting concerning its request for rezoning. The letter concluded:

"The day after the meeting all of the same representatives of the buyer assembled and discussed our chances for successfully pursuing the re-zoning request. Everyone who was there was in agreement that our chances were zero to none for success. As a result, we decided to withdraw the request for rezoning, rather than face almost certain defeat.

The bottom line is that we are still interested in the property, but the property is not worth as much to us a 35-acre parcel zoned I-1, as it would be if it were zoned I-2. At this juncture, I think it is virtually impossible for anyone to get that property re-zoned I-2, especially to accommodate the operation of an asphalt plant. In an effort to keep this thing moving, my clients have authorized me to offer your clients the sum of $142,500.00 for the property, which they believe fairly represents its value with its present zoning classification. Please check with your clients and advise whether or not that revision in the contract is acceptable. If it is, I believe we can accelerate the closing and bring this matter to a speedy conclusion. Your prompt attention will be appreciated. Thanks."

Defendants' attorney responded in a letter dated June 9, the body of which stated, in its entirety:

"In reply to your May 21 letter, be advised that the owners of the property in question are not interested in selling the property for $142,500 and, ...


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