Lempera v. Karner
| Citation | 398 N.E.2d 224,34 Ill.Dec. 549,79 Ill.App.3d 221 |
| Decision Date | 30 November 1979 |
| Docket Number | No. 78-1606,78-1606 |
| Parties | , 34 Ill.Dec. 549 Thomas J. LEMPERA and Nancy Mae Lempera, Plaintiffs-Appellees, v. Matthias KARNER et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
This is an appeal from an order of the trial court granting specific performance of a contract for the sale of real estate. The sole issue raised is whether the contract was valid. We affirm.
Plaintiffs, Thomas and Nancy Mae Lempera, brought this action against defendants, Matthias Karner, Theresia Karner, Michael J. Dix, Sr., Michael J. Dix, Jr., Matthew Dix, and Theresa Dix, seeking, among other relief, specific performance of a contract entered into between plaintiffs and the Karners. The record indicates that on August 4, 1976, plaintiffs signed an agreement to purchase from the "owners of record" certain property located in Burbank, Illinois for $29,900. The terms of payment included provisions that $2,990 would be paid as earnest money and deposited with owners' agent, Sireles Realty. The agreement also provided that if it were not accepted by the owners within five days of August 4, the agreement would be null and void and the earnest money deposit would be returned to plaintiffs. Matthias and Theresia Karner, the undisputed record owners of the property, signed and telegraphed their acceptance of the contract on August 10. On August 16, plaintiffs deposited their earnest money with Sireles Realty and on August 20, they applied for a mortgage from Midland Savings and Loan Association.
On October 27, the Karners contracted to sell their Burbank property to their son-in-law, Michael J. Dix, Sr. 1 Upon hearing of this contract, plaintiffs' attorney wrote to the Karners and informed them that such a contract violated their earlier contract with plaintiffs. He insisted that they perform their contract with plaintiffs. On November 5, plaintiffs recorded an "Affidavit of Interest Claimed in Real Estate" on the Burbank property with the Recorder of Deeds. Nonetheless, on December 11, the Karners conveyed the Burbank property to Dix.
The case went to trial on May 31, 1978. On June 5, only one day before the conclusion of the trial, defendants, Michael J. Dix, Jr., Matthew Dix, and Theresa Dix, filed a motion to dismiss on grounds that the contract was null and void because the Karners had not accepted the contract until after the five day acceptance period. On June 21, the trial court entered its order granting specific performance. Only defendants Michael J. Dix, Jr., Matthew Dix, and Theresa Dix appeal.
OPINIONDefendants contend that the contract was null and void because it had not been accepted until after the five day acceptance period had passed. Plaintiffs, on the other hand, contend that the parties waived the five day acceptance period by engaging in a course of conduct which indicates their desire and intent to be bound by the contract. We agree with plaintiffs' contention.
A waiver is an "intentional relinquishment of a known right." (Allstate Ins. Co. v. National Tea Co. (1975), 25 Ill.App.3d 449, 461, 323 N.E.2d...
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