Sherbrooke Homes, Ltd. v. Krawczyk

• Decision Date: 31 March 1980
• Docket Number: No. 79-335,79-335
• Citation: 403 N.E.2d 622,38 Ill.Dec. 391,82 Ill.App.3d 990
• Parties: , 38 Ill.Dec. 391 SHERBROOKE HOMES, LTD., a corporation, Plaintiff-Appellant, v. Theodore A. KRAWCZYK and Rose M. Krawczyk, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 622

403 N.E.2d 622

82 Ill.App.3d 990, 38 Ill.Dec. 391

SHERBROOKE HOMES, LTD., a corporation, Plaintiff-Appellant, v. Theodore A. KRAWCZYK and Rose M. Krawczyk, Defendants-Appellees.

No. 79-335.

Appellate Court of Illinois, First District, Second Division.

March 31, 1980.

Rehearing Denied April 30, 1980.

Barry M. Rosenbloom and Alvin E. Rosenbloom, Chicago (Ruttenberg & Ruttenberg, Chicago, of counsel), for plaintiff-appellant.

Hubachek, Kelly, Rauch & Kirby, Chicago (Richard T. Zwirner, David M. Allen and Judith L. Borden, Chicago, of counsel), for defendants-appellees.

PERLIN, Presiding Justice:

Plaintiff, Sherbrooke Homes, Ltd. (hereinafter referred to as Sherbrooke) filed an action in the circuit court of Cook County against defendants Theodore A. Krawczyk (hereinafter referred to as the husband) and Rose M. Krawczyk (hereinafter referred to as the wife) to recover indebtedness evidenced by an instrument entitled promissory note (hereinafter referred to as the note) signed only by the husband and given to Sherbrooke to secure performance under an instrument entitled real estate sale contract (hereinafter referred to as the contract) which was also signed only by the husband. The husband and wife moved pursuant to section 45 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 45) to dismiss Sherbrooke's complaint. An appeal is now taken from the order of the trial court which dismissed Sherbrooke's complaint with prejudice. The sole issue presented for review is whether the complaint states a cause of action against the husband for breach of contract.

For reasons hereinafter set forth, we reverse and remand for further proceedings not inconsistent with this opinion.

On April 13, 1978 Sherbrooke filed a complaint in two counts against both the husband and the wife to recover indebtedness evidenced by the promissory note which named both the husband and the wife as the promissors but which was signed only by the husband. The note was given by the husband to Sherbrooke to secure performance under the contract which named both the husband and the wife as the "purchaser" but which was signed only by the husband. ¹ Count I of the complaint alleges that "(the husband and the wife) are lawfully indebted to (Sherbrooke)" for the amount of the note "which was signed in furtherance of a contemplated purchase of a home by the (husband and the wife) from (Sherbrooke) and which note was due on February 1, 1978, or at closing whichever occurred first." Count I further alleges that Sherbrooke has repeatedly demanded payment from the husband and the wife, but that the husband and the wife have refused and continue to refuse to pay the amount of the note.

Count II of the complaint alleges that the husband "entered into a real estate contract" with Sherbrooke and "delivered to (Sherbrooke) his personal note in the sum of $8,500"; and that the husband breached the terms of the contract rendering him liable to Sherbrooke. Count II further alleges that because the real estate was to be used as a marital residence, the wife is liable pursuant to the Family Expense Act (Ill.Rev.Stat.1977, ch. 40, par. 1015) ² to Sherbrooke for the husband's default.

The husband and the wife moved pursuant to section 45 of the Civil Practice Act to dismiss the complaint because "it is substantially insufficient in law." The motion to dismiss alleges that the promissory note and the real estate contract upon which Sherbrooke predicates liability were not enforceable against either the husband or the wife because each of the instruments fails to bear the necessary signatures of both the husband and the wife. The motion to dismiss further alleges that the complaint does not state a cause of action against the wife because the "statute only gives a right to recover for the reasonable value of services actually rendered. * * * The statutory liability of a wife for family expenses does not extend to an alleged obligation on an alleged executory contract for future expenses." The trial court dismissed the complaint with prejudice.

During oral argument Sherbrooke agreed with the husband and the wife that the Family Expense Act was inapplicable to the case at bar. Because that issue is no longer disputed by the parties, we make no determination of its merits.

Sherbrooke contends that both Count I and Count II of its complaint allege sufficient facts to state a cause of action against the husband for breach of contract and that the absence of the wife's signature from the contract and the promissory note does not render the contract and the note unenforceable against the husband. The husband maintains that the absence of the wife's signature renders the instruments incomplete and thereby unenforceable.

As a general rule, the interpretation, construction or legal effect of a contract is a matter to be determined by the courts as a question of law. (Chicago Daily News v. Kohler, Inc. (1935), 360 Ill. 351, 196 N.E. 445; Tondre v. Pontiac School District No. 105 (5th Dist. 1975), 33 Ill.App.3d 838, 342 N.E.2d 290.) This rule has been applied (1) when the contract is in writing (Farmers Automobile Insurance Association v. Hamilton (5th Dist. 1975), 31 Ill.App.3d 730, 335 N.E.2d 178, aff'd (1976) 64 Ill.2d 138, 355 N.E.2d 1); (2) when there is no ambiguity or uncertainty in the terms of the contract (La Salle National Bank v. Wieboldt Stores, Inc. (1st Dist. 1965), 60 Ill.App.2d 188, 208 N.E.2d 845 (app. after remand) 102 Ill.App.2d 339, 243 N.E.2d 328); and (3) when there is no question involving proof of the parties' construction which is dependent upon disputed extrinsic facts. (Wheaton National Bank v. Aarvoid (2d Dist. 1976), 38 Ill.App.3d 658, 348 N.E.2d 520.) However, if the construction of an agreement is dependent not only upon the meaning of the words employed but also upon extrinsic facts and circumstances or upon the construction which the parties themselves have placed upon the contract, and the facts are controverted, any inferences to be drawn are for the trier of fact. Chicago Daily News, Inc. v. Kohler ; Trustees of Schools v. Schroeder (1st Dist. 1971), 2 Ill.App.3d 1009, 1017, 278 N.E.2d 431.

In the case at bar the contract recites that the "purchaser" is "Theodore A. and Rose M. Krawczyk" and two lines were provided for their signatures. The promissory note recites that "the undersigned, Theodore A. and Rose M. Krawczyk" promise to pay to Sherbrooke the amount of the note, and once again two lines were provided for their signatures. The husband argues that the contract...