Hockenbury v. Lorentz, 75--223

• Decision Date: 19 February 1976
• Docket Number: No. 75--223,75--223
• Citation: 343 N.E.2d 90,35 Ill.App.3d 983
• Parties: William L. HOCKENBURY, Plaintiff-Appellant, v. Florence LORENTZ d/b/a Lorentz Realty Co. et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 90

343 N.E.2d 90

35 Ill.App.3d 983

William L. HOCKENBURY, Plaintiff-Appellant, v. Florence LORENTZ d/b/a Lorentz Realty Co. et al Defendants-Appellees.

No. 75--223.

Appellate Court of Illinois, Third District.

Feb. 19, 1976.

Moehle, Reardon, Smith & Day Ltd., Washington, for plaintiff-appellant.

Vonachen, Cation, Lawless, Trager & Slevin, Morton S. Goldfine, Peoria, for defendants-appellees.

STENGEL, Justice.

Plaintiff William Hockenbury filed suit in the Circuit Court of Peoria County against Florence Lorentz, d/b/a Lorentz Realty, and Robert and Janet Hiatt, to recover a down payment of $1,400.00 made under a real estate purchase contract. After the trial court entered judgment for defendants, plaintiff perfected this appeal and filed his brief. The defendants have declined to enter an appearance or to file a brief in this court, and do not object to this appeal being submitted on only the brief of the appellant.

Where an appellee does not file a brief in the reviewing court, we may reverse without considering the merits of the case, or we may, in our discretion, consider and determine the case on its merits. Witter v. Winter (2d Dist.1975), 25 Ill.App.3d 924, 323 N.E.2d 407. We elect to decide this case on the merits.

According to the record, on July 11, 1973, plaintiff and the Hiatts signed a standard-form real estate contract whereby plaintiff agreed to purchase Hiatts' residence for $16,000.00, with Lorentz Realty acting as broker. Under the terms of the contract, plaintiff made a $1,400.00 down payment, and the purchase was subject to plaintiff being able to finance the balance with a 95 per cent loan at a local lending institution. The date of closing was 30 days from the date of the contract. The contract also provided that, if plaintiff failed to carry out the terms of the agreement, the down payment would be forfeited and retained by the Hiatts.

On July 12, 1973, plaintiff's attorney wrote defendants asking them to rescind the contract because plaintiff's mental condition was such that his competency to enter a contract was doubtful. Defendants refused to rescind, and on August 10, 1973, informed plaintiff that, if he persisted in his refusal to perform, they would consider the down payment forfeited, and that they would place the house back on the market unless plaintiff agreed by August 14 to perform his obligations under the contract. Defendants also agreed to extend the time for plaintiff's performance. Plaintiff responded on August 31 with a letter acknowledging the extension of time for his performance and assuming that the extension would be for a period of 30 days. Plaintiff also asked for the name of any local lending institution which would make a 95 per cent loan. The record contains no evidence of any further communication between the parties.

Plaintiff testified that, during the latter part of July, he called two or more lending institutions in Peoria and was informed that they were no longer accepting applications for 95 per cent real estate mortgage loans. Representatives of three Peoria Savings and Loan Associations testified for defendants that they stopped accepting applications for 95 per cent loans on July 18, 20, and 31, respectively. The record also contains two letters dated early September from other lending institutions refusing to accept a loan application from plaintiff.

After August 10, 1973, defendants advertised the property for sale, and on September 27, 1973, defendants sold the property to a third party on contract for $18,000 with a $3,000 down payment. Lorentz Realty was paid a commission on the sale.

Plaintiff asserts numerous grounds for reversal, including the contention that plaintiff's inability to obtain financing excused him from performance. Plaintiff also urges that we depart from the traditional rule, adopted somewhat reluctantly by Illinois courts, which denies restitution of a down payment to a defaulting purchaser without regard to whether...