{ "id": 2688284, "name": "Myron O. Steinberg, Plaintiff-Appellee, v. Keepper-Nagel Real Estate Investments, Inc., Defendant-Appellant", "name_abbreviation": "Steinberg v. Keepper-Nagel Real Estate Investments, Inc.", "decision_date": "1973-10-17", "docket_number": "No. 72-83", "first_page": "619", "last_page": "622", "citations": [ { "type": "official", "cite": "14 Ill. App. 3d 619" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "103 Ill.App.2d 197", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599852 ], "pin_cites": [ { "page": "199, 200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0197-01" ] }, { "cite": "253 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "43 Ill.2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844019 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0357-01" ] } ], "analysis": { "cardinality": 460, "char_count": 7592, "ocr_confidence": 0.735, "pagerank": { "raw": 8.141880975214859e-08, "percentile": 0.47433016365046765 }, "sha256": "bb12e1fee558b87dce027f988f8ba14feec8117096a498c07768a6cb4e660e13", "simhash": "1:a593cc2a8cc64443", "word_count": 1216 }, "last_updated": "2023-07-14T18:15:06.021527+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Myron O. Steinberg, Plaintiff-Appellee, v. Keepper-Nagel Real Estate Investments, Inc., Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant appeals from a summary judgment entered by the circuit court of Lake County declaring null and void a real estate sales contract relating to some 22 acres of land in the Village of Mundelein.\nThe contract entered into on March 20, 1969 was between plaintiff as seller and defendant as purchaser and consists of 18 numbered paragraphs. Paragraph 4 obligated defendant to perform within 30 days soil boring and organic content tests on the property and deliver the results thereof to the plaintiff. Paragraph 5 required defendant to \u201cundertake\u201d at its own expense to cause a rezoning of the property by the village so that the proposed planned development (of multi-family dwelling structures thereon with a density of not less than 17 dwelling units per acre) could be effectuated and approved, and plaintiff agreed to cooperate in such efforts; it further provided that the \u201crezoning condition must be satisfied within 180 days from the date the village * * * lifts its moratorium to apartment rezoning and a copy of a letter incidental thereto is served upon\u201d the defendant and a copy to its attorney. In-Paragraph 9(a) plaintiff expressly warranted that \u201cadequate water and storm and sanitary sewer facilities * * * to service the planned development have been constructed to [sic] and are available at the property site.\u201d\nThe moratorium to apartment rezoning was by ordinance adopted in November 1968 which was stated therein to be due to the fact that a new master plan for zoning and planning was in preparation which \u201cmay not be completed until some time in 1969.\u201d\nWhile this moratorium was in effect defendant made several attempts to cause the village to grant rezoning and approve its planned development but without success, even though the Mundelein Zoning and Planning Commission had recommended approval. It is not clear from the pleadings and record whether the failure to adopt a new master plan was the only reason for the village\u2019s failure to lift the moratorium, or whether it was due to the Illinois Environmental Protection Agency\u2019s refusal of a permit to extend existing sanitary sewers because of the inability of the viUage\u2019s sewage treatment works to treat additional wastes, and the Agency\u2019s determination that no additional connections should be made thereto until \u201cthe sewage treatment plant project is complete and operational.\u201d\nIn May 1971, more than two years after the contract was entered into, the moratorium still being in effect, plaintiff filed its complaint for declaratory judgment that the contract between the parties be declared void for want of mutuality of obligation and mutuality of enforcement, and for indefiniteness as to any period of compliance or enforcement.\nDefendant filed its answer and counterclaim. The counterclaim alleged that plaintiff\u2019s warranty as to the adequacy of sewer facilities was false and fraudulent and asked for $50,000 in damages resulting therefrom. Plaintiff\u2019s answer denied that the warranties were false and fraudulent.\nIn July, 1971, plaintiff moved for judgment on the pleadings, or in the alternative for summary judgment. A deposition was thereafter taken of Karl Nagel, secretary of the defendant, which plaintiff filed, with leave of court, in support of his motion for summary judgment. Defendant filed no counter affidavit either prior to or at the hearing.\nIn December 1971 the court filed its memorandum declaring the contract void for want of mutuality of obligation and directed plaintiff\u2019s counsel to prepare and submit an order granting summary judgment and dismissing defendant\u2019s counterclaim.\nOn January 14, 1972 defendant filed its unverified motion, with numerous exhibits, to vacate the findings contained in the court\u2019s memorandum, and objected to the court\u2019s reliance upon a statement of the deponent as to his understanding of the terms of the contract. That motion was denied and the court entered the judgment appealed from.\nIn the deposition taken by plaintiff of Mr. Nagel, who negotiated and signed the contract of March 20, 1969 on behalf of defendant, the following colloquy occurred:\n\u201cQ. Was it your understanding with Mike Steinberg on March 20, 1969, and which understanding was embodied in this alleged agreement, that at any time from the time that contract was entered into thereafter, that you could, under your sole discretion, terminate at will any \u201cundertaking\u201d or further attempt to have the property zoned so that the planned development could be effectuated thereon or could at your sole discretion terminate at will any attempt to obtain approval of the planned development on the property?\nTHE WITNESS: A. Yes; that\u2019s my understanding.\u201d\nIn its memorandum opinion, holding the contract void for want of mutuality of obligation, the trial court pointed out in substance, that it did so because \u201csince the inception of the contract to the present,\u201d as admitted by Mr. Nagel, \u201cthis contract is terminable at the will of defendant, and plaintiff has never had any forceable rights thereunder.\u201d The record shows no objection by defendant to the filing or use of that deposition in support of plaintiff\u2019s motion for summary judgment.\nIt was not until after the court filed the memorandum opinion in December, 1971, that defendant filed its motion to vacate the court\u2019s finding. In that motion the defendant stated that \u201cfair minds are capable of disagreement as to the definition, interpretation and construction to be given to the word undertake\u2019 \u201d as used in that contract. In this court, defendant contends, in effect, that the meaning of the word was clear and unambiguous, and that the trial court\u2019s use of Mr. Nagel\u2019s deposition, and particularly his statement concerning the understanding of the parties as to the meaning of the word, violated the parol evidence rule. Even if it be assumed that the word \u201cundertake\u201d is clear and unambiguous, it was permissible for the court to consider Mr. Nagel\u2019s testimony since the use of it was not objected to in the trial court; and objection may not be raised for the first time on appeal. Tolbird v. Howard (1969), 43 Ill.2d 357, 362, 253 N.E.2d 444, 447.\nDefendant further contends that mutuality of obligation is not essential to make an executory contract enforceable. This contention is without merit. Although the contract of March 20, 1969, stated in general terms that \u201ctime is of the essence,\u201d the only time limit for performance mentioned is \u201cwithin 180 days\u201d of the lifting of the moratorium. Thus it is clear that the contract did not express any time limit for its performance. Three (3) years had elapsed and the moratorium had not yet been lifted\nWhere no definite time is fixed during which an executory contract shall continue in force, it is terminable at the will of either party and mutuality of obligation is essential to make it enforceable. Schoen v. Caterpillar Tractor Co. (1968), 103 Ill.App.2d 197, 199, 200, 243 N.E.2d 31, 33.\nTherefore the trial court did not err in declaring the contract void for want of mutuality of obligation. Since the contract was void the counterclaim based thereon was properly dismissed.\nAffirmed.\nGUILD, P. J., and ALLOY, J., concur.\nAlthough the complaint includes three counts, there is no need to discuss them separately.", "type": "majority", "author": "Mr. JUSTICE RECHENMACHER" } ], "attorneys": [ "Rudnick, Wolfe, Snyderman & Foreman, of Chicago, for appellant.", "Steinberg, Polacek & Steinberg, of Chicago, for appellee." ], "corrections": "", "head_matter": "Myron O. Steinberg, Plaintiff-Appellee, v. Keepper-Nagel Real Estate Investments, Inc., Defendant-Appellant.\nNo. 72-83\nSecond District\nOctober 17, 1973.\nRudnick, Wolfe, Snyderman & Foreman, of Chicago, for appellant.\nSteinberg, Polacek & Steinberg, of Chicago, for appellee." }, "file_name": "0619-01", "first_page_order": 641, "last_page_order": 644 }