Janssen Bros., Inc. v. Northbrook Trust and Sav. Bank

• Decision Date: 15 August 1968
• Docket Number: No. LT--339,LT--339
• Citation: 299 N.E.2d 431,12 Ill.App.3d 840
• Parties: JANSSEN BROTHERS, INC., an Illinois Corporation, Plaintiff-Appellee, v. NORTHBROOK TRUST & SAVINGS BANK as Trustee, under Trust, dated
• Court: United States Appellate Court of Illinois

Page 431

299 N.E.2d 431

12 Ill.App.3d 840

JANSSEN BROTHERS, INC., an Illinois Corporation, Plaintiff-Appellee, v. NORTHBROOK TRUST & SAVINGS BANK as Trustee, under Trust No LT--339, dated August 15, 1968, Defendants-Appellants.

No. 72--368.

Appellate Court of Illinois, Second District.

July 9, 1973.

Churchill & Baumgartner, Grayslake, for defendants-appellants.

Weinstein, Myer, New & Berlin, Chicago, for plaintiff-appellee.

SEIDENFELD, Justice.

This appeal questions the propriety of the trial court's order, entered upon the representations of plaintiff's counsel, and without the taking of evidence, granting plaintiff leave to deposit a sum of money in escrow pursuant to a settlement agreement between the parties, although such deposit was tendered after the date specified in the agreement.

The facts are undisputed. This action was brought initially to recover damages for the breach of a certain lease and option agreement, and the complaint was then amended to include an additional count to establish that a deed to plaintiff's property running to defendants, and a lease back to plaintiff, were, in fact, intended only to establish a security interest in defendants. A hearing was had on the latter issue, and an order entered for plaintiff. Defendants then filed a counterclaim for foreclosure of the security interest.

On July 13, 1972, a comprehensive settlement agreement was reached with the court's assistance, and was dictated into the record. Under its terms, an escrow was to be created with Chicago Title Insurance Company. Each of the parties had held title in a trust, and was to deposit in the escrow a deed to the trustee for the other party, along with any other documents which would be necessary to clear any title objections which might exist. Plaintiff was to deposit with the title company a sum of money sufficient to pay its obligation to the defendants, less certain credits claimed by plaintiff. If all of plaintiff's deposits were timely made, as required in the escrow, so that Chicago Title Insurance Company was in a position, by the close of business on September 11, 1972, to pay out all of the items agreed to, the deed from the defendants to the plaintiff was to be recorded, and the sums deposited by plaintiff delivered to the parties entitled to them. If the deposits were not made by the close of business on September 11, 1972, the deed from the plaintiff to the defendants was to be recorded and, with certain minor exceptions, all funds deposited were to be refunded to plaintiff. The operation of the escrow was to be automatic, the court stating, 'if the money isn't deposited, the recording of certain deeds will be automatic. If the money is deposited, the recording of the deeds will be automatic * * *.' The court retained jurisdiction for purposes of enforcement.

On September 15, 1972, plaintiff sent a notice to defendants that it would appear on September 19, 1972, and 'request the court's instructions regarding that certain Stipulation heretofore entered in the above entitled cause and Escrow No. 6085 at the Chicago Title & Trust Company, Lake County Division, entered into by the parties pursuant to said Stipulation.'

On September 19, 1972, the parties appeared before the trial judge. No evidence was introduced and no documents were presented. Counsel for the plaintiff represented to the court, however, that an escrow agreement had been entered into in conformity with the stipulation; that the plaintiff had made a timely deposit of a portion of the funds required and had, on September 11, 1972, deposited a letter from McHenry Savings and Loan Association indicating that the Association was willing to give the plaintiff a first mortgage in an amount which would give it sufficient funds to comply with the escrow agreement, but that the proceeds of that mortgage were not tendered to Chicago Title Insurance Company until September 15, 1972, four days after the termination date provided for in the stipulation; that plaintiff's counsel had attempted to call defendants' attorney on September 11, but was unable to reach him because he was engaged in a trial (both briefs state that no representation was made as to the purpose of that call, although this is not included in their stipulation, and the court's order recites the representation that the call was to discuss the status of the escrow); that defendants' counsel, learning on the morning of September 15 that all required funds had not been deposited with the title company, advised plaintiff's counsel that he would demand that the title company not accept any further tender of funds; and that defendants' counsel did make such demand, by reason of which when plaintiff tendered the balance of funds required to the title company at 2:00 P.M. on September 15, the title company refused the tender.

Over the objection of counsel for the defendants that the court was writing a new agreement for the parties and had seen neither the escrow agreement nor the commitment letter of McHenry Savings and Loan (the court did not see these prior to the entry of its order; however, the escrow agreement was appended as an exhibit to a statement of representations entered of record by the court along with its ruling on plaintiff's motion), the court entered an order giving the plaintiff 'leave to deposit in Escrow 6085 with the Chicago Title & Trust Company, instanter, net mortgage proceeds in the sum of $62,775.00, which deposit shall be construed to have been timely made in accordance with the terms of said escrow relating to the obligation of Janssen Brothers, Inc. to make deposits.'

Defendants first claim that the court should not have entered judgment on the basis of an informal procedure which did not include either written pleadings or the taking of sworn evidence to support the judgment. They additionally argue that the court abused its discretion in ordering that a deposit made after the date specified in the settlement agreement would be construed as timely.

Plaintiff counters that a summary proceeding is proper to enforce a settlement agreement and that formal pleadings are unnecessary. Plaintiff also...