Alter v. Moellenkamp
| Decision Date | 30 November 1961 |
| Docket Number | No. 36479,36479 |
| Citation | 179 N.E.2d 4,23 Ill.2d 506 |
| Parties | William A. ALTER, Appellant, v. Henry MOELLENKAMP et al., Appellees. |
| Court | Illinois Supreme Court |
Jerome Berkson and Harvey M. Rawson, Chicago, for appellant.
William C. Wines, Mortimer & Ryan, and Gabriel S. Berrafato, Chicago, for certain appellees.
John F. Hoover, Chester F. Mitchell, Jr., and Bernstein & Ganellen, Chicago (Sol H. Ganellen, and Glenn A. McTavish, Chicago, of counsel), for other appellees.
This is an appeal from a decree of the circuit court of Cook County, dismissing a suit for specific performance of a contract for the sale of real estate and in the alternative for damages and for relief in damages against third-party subsequent purchasers. A freehold is involved.
The decree below was entered after hearing of a motion to dismiss, without hearing of evidence, so that the procedural steps must be stated. Appellant filed a complaint in chancery praying only for specific performance of a contract dated April 19, 1957, later redated and signed June 5, 1957, by which appellant agreed to purchase and appellees Henry Moellenkamp and Mae Moellenkamp, his wife, agreed to sell at $4000 an acre real estate therein described of 17 acres, with an additional 10 acres, more or less, if the latter were not bound by option of sellers previously given other parties. Appellees Moellenkamp filed a motion to dismiss the original complaint on the ground that it failed to allege an inadequate remedy at law or facts to warrant specific performance. This motion was denied. Thereafter appellees Moellenkamp filed an answer admitting and denying certain paragraphs of the complaint, denying there was an enforceable contract, and setting up affirmative defenses of misrepresentation as well as that said appellees had later sold and conveyed such property to appellees Golf Road Investments Co., Inc., through a land trust with appellee La Salle National Bank and Trust Co. and were unable to convey to appellant.
After the filing of appellees Moellenkamps' answer, appellant, upon notice and leave, filed an amended complaint and had added as parties defendant Golf Road Investments Co., Inc., La Salle National Bank and others, including the alleged beneficiaries of the land trust and the registrar of titles. The amended complaint in count I alleged the contract and prayed for specific performance, or in the alternative if Moellenkamps were unable to convey, then for damages. In count II, the amended complaint alleged a conspiracy on the part of appellees Moellenkamps, Golf Road Investments Co., Inc., and other appellees to cause the property to be sold and conveyed through the land trust to the benefit of appellees and so as to interfere with appellant's contract rights, and prayed for damages.
Appellees, other than Moellenkamps, filed an answer to the amended complaint. Thereafter, appellees Moellenkamps filed a motion to strike and dismiss the amended complaint on grounds that the relief prayed for varied with the contract and property described in the contract, and that the contract was ambiguous and uncertain so that specific performance should be denied. Appellant filed a reply to the answer on file of the certain other appellees. Appellant also moved for leave to file an amendment and supplement to the amended complaint to reform certain amounts in the contract to conform to a different amount allegedly agreed upon by the parties concerning what will be called 'the release out clause.' The court denied leave to file such amendment.
The court below heard the matter and on the motion to dismiss, granted such motion and dismissed the amended complaint with prejudice. A subsequent motion of appellant to vacate this ruling was denied. Thereafter, appellant filed notice of appeal to and transcript and brief in the Appellate Court for the First District. Prior to the filing of any briefs by appellees or to hearing, or opinion of the Appellate Court, on appellant's motion the Appellate Court transferred this cause to this court, a freehold being involved.
It is contended by appellees that the actions by appellant in the Appellate Court, including the arguing of contentions in his brief, which, if sustained, would dispose of the case on nonfreehold issues, is a waiver of appellant's right to review of his claim to a freehold interest by this court. We cannot agree with this contention. Section 86 of the Civil Practice Act provides that where an appeal is wrongly appealed to either the Appellate or Supreme Court it is the duty of such court to transfer the case to the proper court where the case shall proceed as if it had been taken there...
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Gordon v. Bauer
...jurisdiction. [Citations.]" (Patterson v. Patterson (1911), 251 Ill. 153, 182-83, 95 N.E. 1051, 1063; see Alter v. Moellenkamp (1961), 23 Ill.2d 506, 511, 179 N.E.2d 4, 6-7; Turek v. Mahoney (1945), 407 Ill. 476, 483, 95 N.E.2d 330, 334; Yonan v. Oak Park Federal Savings and Loan Associatio......
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Timberline, Inc. v. Towne
...by extrinsic evidence of facts, physical conditions, measurements or monuments referred to in the contract. (Alter v. Moellenkamp (1961), 23 Ill.2d 506, 510, 179 N.E.2d 4; Koch v. Streuter (1905), 218 Ill. 546, 557, 75 N.E. 1049.) "The contract must either describe the land to be conveyed w......
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Geist v. Lehmann, 72--176
...650; A. Corbin, 5A Corbin on Contracts (1970 § 1222) 473, 71 Am.Jur.2d (1973 Specific Performance § 215) 275; Cf. Alter v. Moellenkamp (1961), 23 Ill.2d 506, 179 N.E.2d 4. We find in these situations there is no significant difference between granting the remedy of forfeiture and granting t......
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Cesena v. Du Page County
... ... Upon invoking our equitable jurisdiction, this court is charged with doing full and complete justice among all parties. (Alter v. Moellenkamp (1961), 23 Ill.2d 506, 511, 179 N.E.2d 4.) Therefore, we set aside the circuit court's order finding Fawell in contempt of court and ... ...