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12/01/95 MCCORMICK ROAD ASSOCIATES L.P. II v.

December 1, 1995

MCCORMICK ROAD ASSOCIATES L.P. II, PLAINTIFF-APPELLANT,
v.
ARTHUR TAUB AS EXECUTOR OF THE ESTATE OF NEIL COLEMAN, CHICAGO TITLE & TRUST CO., AS TRUSTEE U/T/A DATED NOV. 25, 1991, AND KNOWN AS TRUST NO. 1095960, MONA COLEMAN AND EDWARD AXELROD, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. O'BRIEN, JUDGE PRESIDING.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, McCormick Road Associates L.P. II, brought this action seeking specific performance of an agreement dated November 21, 1991, entered into by Stephan Wolf, who subsequently named plaintiff as his nominee, and defendants Arthur Taub, as executor of the estate of Neil Coleman, Chicago Title & Trust Company, as trustee, Mona Coleman and Edward Axelrod. The named defendants include the trustee and the beneficiaries of the land trust.

The agreement provided that Wolf had the option to purchase an undivided one-half interest in certain property. Among other conditions, the agreement provided that he would obtain a mortgage to fund the purchase price. Pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), defendants filed a motion to dismiss the complaint on the ground that the mortgage required by the agreement lacked essential terms and thus the agreement could not be specifically enforced. The trial court granted defendants' motion to dismiss and gave plaintiff leave to file an amended complaint. Thereafter, plaintiff filed a two-count amended complaint. Count I contained all of the allegations of the original complaint and added allegations that the written agreement was modified by a subsequent oral agreement providing all of the essential terms of the required mortgage. The trial court subsequently dismissed count I with prejudice. Plaintiff appeals. (The trial judge transferred count II to the law division, and that count is not involved in this appeal.)

Prior to November 1991, Stephan Wolf entered into a purchase agreement with Security Pacific Credit Corporation whereby Wolf agreed to purchase the Super Gap Shopping Center located in Lincolnwood, Illinois. (This is the property which is the subject of the written agreement herein.) On November 25, 1991, Wolf and Taub, as executor of Coleman's estate, entered into the written agreement whereby defendants acquired Wolf's interest in the contract with Security Pacific.

Four paragraphs of the written agreement are relevant to the disposition of this appeal. Paragraph 5 provided that Wolf or his nominee acquired an option to purchase a one-half interest in the property within a defined time period. Paragraph 7 contained an acknowledgment and agreement by Taub that Wolf or his nominee would finance his exercise of the option by borrowing money from a third party and placing a first and prior first mortgage lien on the property; that is, plaintiff's and defendants' one-half interests, as collateral security for the loan. In addition, paragraph 7 provided that after the option was exercised, Wolf or his nominee would be entitled to receive one-half of the net operating income of the property and that Wolf would pledge said one-half income interest as additional collateral security for the aforesaid mortgage loan.

Paragraph 8 of the agreement provided that during the period between defendants' acquisition of the property and the effective date of notice from Wolf or his nominee in exercise of the option, Taub had the right to place a first mortgage on the property to secure a loan in the amount of the option price.

Thus, the option would be deemed to have been exercised, and Wolf or his nominee would become one-half owner and assume all obligations of the mortgage as though he himself had made the loan as provided for in paragraph 7.

Paragraph 9 provided that plaintiff shall perform certain personal services for Taub involving the property after the exercise of the option. These services included management, leasing and real estate brokerage.

As to the mortgage, the agreement did not contain any specifications regarding the mortgage amount, mortgage term, type of mortgage (fixed or variable rate), interest rate, amortization period of Wolf's loan or mortgage from the third party, the grace period, if any, notice provisions, and default provisions.

Defendants subsequently became 100% owners of the property. Wolf designated plaintiff as his nominee. Plaintiff served written notice of its exercise of the option, whereupon defendants refused to participate in or authorize plaintiff to utilize the property as collateral for a loan negotiated by plaintiff.

Plaintiff filed its complaint for specific performance of the option, alleging that it had fully performed. After the trial judge dismissed its complaint, plaintiff filed an amended two-count complaint. Count I (the only count to be considered in this appeal) contained all of the allegations of the original complaint and added that the agreement was modified by an oral agreement which provided that the specifications for the third party mortgage to be obtained pursuant to paragraph 7 of the agreement would include: (1) a defined term; (2) interest at a fixed rate not to exceed six percentage points over prime; and (3) debt service which would not exceed one-half of the monthly net operating income of the property. The trial court again dismissed the complaint, holding that even considering the provisions of the alleged oral agreement, the "alleged contract is insufficiently specific to grant specific performance."

On appeal, plaintiff contends that the agreement contained sufficient information and details to support specific performance as between the parties and that the oral modification, in conjunction with the agreement, cured any defects in the ...


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