Bachewicz v. American Nat. Bank and Trust Co. of Chicago, 16555
Decision Date | 28 June 1984 |
Docket Number | No. 83-265,D,No. 16555,16555,83-265 |
Citation | 126 Ill.App.3d 298,466 N.E.2d 1096 |
Parties | , 81 Ill.Dec. 294 Allan BACHEWICZ, Joseph Bachewicz and Lawrence Conjar, d/b/a B & B Investment Company, a business partnership, Plaintiffs-Appellees, Cross-Appellants, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee of Trustefendant. 5601 North Sheridan Associates, an Illinois Limited Partnership, Defendant- Appellant and The Statesman Limited Partnership, an Illinois Limited Partnership, Defendant- Appellant, Cross-Appellee. Norman W. FISHMAN, Plaintiff-Appellee, v. William WILKOW, Defendant, 5601 North Sheridan Associates, an Illinois Limited Partnership, and the Statesman Limited Partnership, an Illinois Limited Partnership, Defendants- Appellants. |
Court | United States Appellate Court of Illinois |
Friedman & Rochester, Ltd., Louis M. Friedman, Richard R. Rochester, Chicago, for defendant-appellant 5601 N. Sheridan Associates.
John J. O'Toole, Anthony J. Paulette, Chicago, for defendant-appellant The Statesman Ltd. Partnership.
Frederic J. Artwick, Prentice H. Marshall, Jr., Sidley & Austin, Chicago, for plaintiff-appellees, cross-appellants Allan Bachewicz et al., d/b/a B & B Inv. Co.
Collins & Amos, Alan O. Amos, Chicago, for plaintiff-appellee Norman W. Fishman.
Defendant, Statesman Limited Partnership (Statesman), appeals from the judgment of the circuit court of Cook County awarding plaintiffs, B & B Investment Company and its individual partners (B & B), damages for breach of a contract to convey real estate. Both Statesman and its co-defendant, 5601 North Sheridan Associates (Associates), appeal from that portion of the judgment awarding plaintiff, Norman Fishman, a real estate brokerage commission. B & B also cross-appeals respecting the amount of damages awarded to it for breach of contract.
We affirm in part and reverse in part.
The pertinent facts presented at trial were largely undisputed:
Statesman and Associates were both formed as limited partnerships in 1972 for the specific purpose of acquiring a 90 unit apartment building located at 5601 N. Sheridan Road in Chicago, Illinois. Since 1973, Statesman and Associates have each owned fifty percent of the beneficial ownership in the property. Legal title was held by American National Bank and Trust Company, with each limited partnership holding the power of direction only as to its own fifty percent interest. The conditions for either the sale of a co-owner's individual one-half interest or the sale of the entire building were set forth in paragraph 9 of a joint venture agreement entered into by the parties in 1972. 1 That provision stated:
During the period of joint ownership, Statesman's general partners were Milton Schraiber and David Ziegler. Associates' general partners were William Wilkow (William), his father, Mendel, and uncle, Joseph. Schraiber and Ziegler dealt exclusively with William regarding joint venture matters, since he predominantly conducted Associates' affairs.
At various times, offers were received to purchase the property, about which William or Schraiber would inform the other and discuss the terms. In February, 1977, Norman Fishman, a real estate broker who had recently sold an unrelated property for the Wilkows, arranged for Allan Bachewicz of B & B to inspect the Sheridan Road property. At that time, an agreement had not been reached as to Fishman's broker's commission.
After his inspection, Bachewicz had several meetings with William on behalf of Associates and with either Schraiber or Ziegler on behalf of Statesman regarding the purchase of the property. These discussions, occurring between February and May of 1977, resulted in B & B submitting several offers to purchase the entire property. The basic terms of each offer provided for deferred payment of a portion of the purchase price and assumption of an existing mortgage. Each offer was discussed by Statesman and Associates, but none was acceptable to both. During this time, B & B had not been shown nor advised of the 1972 joint venture agreement.
On May 25, 1977, William sent a memo to Bachewicz, Ziegler, Schraiber, Fishman and Chicago Service Realty, another broker, outlining the prior negotiations, finding the most recent B & B offer unacceptable to Associates, and suggesting a meeting of all parties involved to determine whether "(w)e have a meeting of the minds as evidenced by a memo agreement signed by all the parties with sufficient details so as to permit the attorneys to draft proper documents." For reasons which are unclear in the record, such a meeting did not occur.
Some time after the memo was sent, William Wilkow and Richard Marmor, an attorney employed in Williams's law offices, met with Fishman and allowed him to review the joint venture agreement which incorrectly named Exchange National Bank as trustee of the property. After reading the agreement, Fishman showed them paragraph 9, about which William had forgotten. About this time, during another meeting between Fishman and Marmor, Fishman was told he would receive a commission if a sale occurred. Fishman never had any discussions with Schraiber or Ziegler about Statesman paying a commission.
In the latter part of June, 1977, William left the country for several months. In early July, 1977, while William was away, B & B submitted a new written offer to Associates; the offer consisted of a two page printed form "Real Estate Sale Contract" and a seven page typewritten rider. Although the offer named both Associates and Statesman as sellers, the offer was delivered only to the Associates group. The offer, dated June 29, 1977, provided for a purchase price of $1,839,233.39, and that a broker's commission of $95,000.00 would be paid in equal portions to Fishman, Chicago Service Realty and Joseph Bachewicz. The provision respecting the commission was in accordance with an agreement reached between Fishman and Marmor.
On July 6, 1977, Mendel Wilkow, as a general partner of Associates, sent a letter to B & B that stated:
Neither Mendel nor anyone else signed the actual offer, and William did not see the B & B offer until after it had been submitted to Associates and Mendel's letter was sent.
On July 8, 1977, Ziegler received a letter from Marmor advising him of the latest B & B offer:
"Dear David:
Enclosed please find a photocopy of an offer to purchase the above property received today by us from Mr. Allan Bachewicz providing for an all-cash deal.
Please be advised that this offer is acceptable to us and has been accepted by us as to our 50% interest. I am herewith officially tendering this offer to you for your acceptance pursuant to paragraph 9 of the Agreement between 5601 N. Sheridan Associates and your partnership dated in 1972.
Please advise me of what action you are taking or intend to take with respect to this contract."
After learning of this letter, Schraiber telephoned Marmor and told him that he had read the letter but that the offer was signed only by Bachewicz on behalf of B & B. Schraiber said that he did not understand what had occurred, nor how either Statesman or Associates could accept his offer. After asking to speak to William Wilkow, Schraiber was informed...
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