White Way Sign & Maintenance Co. v. Montclare Lanes, Inc.
| Decision Date | 08 September 1976 |
| Docket Number | No. 61969,61969 |
| Citation | 355 N.E.2d 632,42 Ill.App.3d 199 |
| Court | United States Appellate Court of Illinois |
| Parties | WHITE WAY SIGN & MAINTENANCE CO., an Illinois Corporation, Plaintiff-Appellant, v. MONTCLARE LANES, INC., and Exchange National Bank of Chicago, Individually and as Trustee, Defendants-Appellees. |
Sheldon A. Harris, Chicago, for plaintiff-appellant.
Robert W. Gettleman, David R. Hodgman, D'Ancona, Pflaum, Wyatt & Riskind, Chicago, for Exchange National Bank of Chicago, defendant-appellee.
White Way Sign & Maintenance Co. (hereafter White Way Sign), the plaintiff, brought this action for damages for breach of contract against Montclare Lanes, Inc. and Exchange National Bank of Chicago (hereafter Exchange), individually and as trustee under Trust No. 24418. The trial court entered an order dismissing Exchange individually, as a party. This appeal raises the issue of whether the trial court erred in allowing the defendant's 'unverified' amended motion to dismiss wherein the grounds for dismissal did not appear on the face of the pleading attacked and was unsupported by affidavit.
Plaintiff's verified second amended complaint alleged, in substance, that on December 28, 1965, Montclare, acting as agent for Exchange in Exchange's individual capacity and as trustee, contracted with White Way Sign for the furnishing of a double face vertical sign display to be attached to the premises at 2957 North Harlem Avenue in Chicago; that White Way Sign completed all that was required to be performed under the contract; that the work, materials, services and labor furnished by White Way Sign were delivered to and accepted by the defendants; but that the defendants refused to pay $13,601.02 due and owing White Way Sign.
Exchange filed an amended motion to dismiss in which it alleged that the only right, title or interest it had in or to the real estate referred to was that of trustee holding naked legal title under the terms of a trust agreement, and that under the terms of the trust agreement, Exchange neither possessed nor exercised any right, power, duty or authority to manage, operate or control the real estate, either individually or as trustee, such right, power, duty or authority being vested solely in the beneficiary, Montclare Lanes, Inc. It was further alleged that the beneficiary of the trust agreement had no authority to contract for or in the name of the trustee or to bind the trustee personally. A certified copy of the trust agreement was attached to the motion.
A cause of action should not be dismissed upon its pleadings unless it clearly appears that no set of facts...
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