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12/29/95 PREFERRED ENTERAL SYSTEMS v. CENTRAL HOME

December 29, 1995

PREFERRED ENTERAL SYSTEMS, INC., PLAINTIFF-APPELLANT,
v.
CENTRAL HOME, INC., HENRY MERMELSTEIN AND MARVIN MERMELSTEIN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Anthony Bosco, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

The Honorable Justice RIZZI delivered the opinion of the court:

Plaintiff, Preferred Enteral Systems, Inc. (Preferred), filed this case against defendants, Central Home, Inc. (Central), Henry Mermelstein and Marvin Mermelstein, based on an action for breach of contract and on actions related to the contract. Preferred appeals from a judgment on the pleadings in favor of defendants. We reverse and remand.

The judgment on the pleadings was based upon Preferred's Verified Third Amended Complaint (complaint), consisting of four counts. Count I is entitled Breach of Contract; count II is entitled Tortious Interference with Contract; count III is entitled Tortious Interference with Prospective Economic Advantage; and count IV is entitled Breach of Fiduciary Duty. Each of the four counts has as its basis the existence of a contract between Preferred and Central stemming from a document entitled Agreement. The judgment on the pleadings as to all four counts of the complaint was founded upon the premise that the Agreement between Preferred and Central is not a contract, but is instead an illusory and unenforceable agreement.

The Agreement provides:

AGREEMENT

This agreement is made this 5th of October, 1989, by and between Central Home Inc. ("Facility"), an Illinois corporation and PREFERRED ENTERAL SYSTEMS, INC. ("Preferred").

WITNESSETH

WHEREAS, Preferred is engaged in the business of procuring, storing, reselling, leasing, delivering, servicing and billing for all medical supplies required for providing enteral feeding pumps to qualified persons, including but not limited to nursing home residents; and

WHEREAS, Preferred is engaged in the business of procuring, storing, reselling, delivering and billing for urological supplies provided to qualified persons including but not limited to nursing home residents; and

WHEREAS, Preferred is engaged in the business of procuring, storing, reselling, delivering and billing for colostomy supplies provided to qualified persons, including but not limited to nursing home residents; and

WHEREAS, Preferred is engaged in the business of procuring, storing, reselling, delivering and billing for tracheostomy supplies provided to qualified persons, including but not limited to nursing home residents; and

WHEREAS, Preferred is engaged in the business of procuring, storing, reselling, delivering and billing for other medical equipment and supplies provided to qualified persons, including but not limited to nursing home residents; and

WHEREAS, Facility manages and/or operates nursing homes with patients that require enteral feeding pumps, urological supplies, tracheostomy supplies and other medical equipment and supplies;

NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the parties agree as follows:

1. DUTIES OF PREFERRED

A. Preferred shall provide inventory and supplies required to fulfill Facility's needs for enteral feeding pumps, feeding bags, enteral food for enteral patients, colostomy bags and bonding agents where needed, tracheostomy care kits, oxygen concentrators for patients on continuous oxygen, urinary catheters, urinary drain bags, dressing care kits and ostomy care.

B. Preferred shall provide monthly professional nutritional and skin care support and evaluations of ...


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