damages for storage, extra housing, additional costs of mortgage financing and commuting expenses may not be the basis for recovery as incidental damages in a suit for specific performance
How later courts described this case
- damages for storage, extra housing, additional costs of mortgage financing and commuting expenses may not be the basis for recovery as incidental damages in a suit for specific performance
- establishing this requirement for specific performance
- “Absent some showing in the record that the third parties were not acting solely as nominees, however, this court can- not say the present appeal is moot.”
- reciting elements of specific performance
Written by the judges who cited it.
Later courts went against this
Disagreed with in part by Talerico v. Olivarri, 343 Ill. App. 3d 128 (2003)
We respectfully disagree with Arnold and Douglas Theater to the extent that they hold otherwise.
The opinion
Mr. JUSTICE VAN DEUSEN, dissenting:
I would affirm the trial court’s dismissal of count II of the amended complaint which requests specific performance and leave the parties to do battle for damages under count I.
Specific performance is not a matter of right but rests in the sound discretion of the trial court to be determined by all the facts and circumstances in evidence; the evidence necessary to support a decree for specific performance must be clear, explicit and convincing. Wolford v. James E. Kolls Investment Co. (1978), 61 Ill. App. 3d 405, 408 , citing Harper v. Kennedy (1958), 15 Ill. 2d 46, 52 .
A party seeking specific performance of a contract must show that he has always been ready, willing and able to perform the contract on his part. (Wolford v. James E. Kolls Investment Co. (1978), 61 Ill. App. 3d 405, 408-09 .) Here, plaintiffs’ sworn statements demonstrate that their continuing offer to perform is conditioned upon their own terms. While the plaintiffs, in paragraph 13 of count II, assert that they were and are ready, willing and able to fulfill the agreement of the parties in all respects and have offered to pay defendant the purchase money in cash, these conclusionary allegations must give way to plaintiffs’ contrary specific allegations in paragraphs 14 and 27 of count II. (See Barger v. First National Bank (1941), 310 Ill. App. 628, 633 .) These sworn allegations demonstrate that plaintiffs conditioned each and every tender to complete the contract by a demand that they be given credit in the form of a set-off of approximately $60,000. This amount included a claim for damages of approximately $40,000. These are the same damages which the majority opinion finds improper and now strikes from count II of the complaint.
This is not a case where plaintiffs have indicated a willingness to pay such amounts as may be found due upon an accounting. (Lewis v. McCreedy (1941), 378 Ill. 264, 272 .) In paragraph 27 of count II plaintiffs state that they are ready, willing and able to close the purchase in accordance with the agreement and their closing statement set forth in exhibit C, which contains a demand for a set-off of $62,016 including $41,535 for damages. In their prayer for relief in count II, the plaintiffs do not indicate that they would abide by an accounting of the court and pay such amount as the court would direct. Rather, the plaintiffs persist in requesting the court to order the defendant to convey the premises to them for approximately $124,000, an amount which they unilaterally determined to be due. This amount is more than $60,000 less than the purchase price called for in the contract.
While plaintiffs contend on this appeal that the trial court should have allowed them to amend their complaint to eliminate certain claims for offsetting damages if the trial court determined such damages to be improper, no such request was ever made of the trial court, nor is there any indication in the record that the plaintiffs ever sought to make such request. It is too late now for plaintiffs to return to the trial court and file an amended complaint in which they agree to pay that which the trial court should determine would be proper.
The statements contained in their complaint demonstrate that plaintiffs have imposed conditions not contained in the contract for sale in each tender of performance which they have made; by so doing they have failed to show that they are ready, willing and able to do the acts required in the contract. (Sullivan v. Burke (1958), 15 Ill. 2d 101, 113-14 .) Where the plaintiff fails to prove that he is ready, willing and able to perform his part of the contract, it is an abuse of discretion to grant specific performance. Wolford v. James E. Rolls Investment Co. (1978); 61 Ill. App. 3d 405, 409 .
The trial court was correct in striking count II of the amended complaint, and having given the plaintiff two opportunities in which to file a proper cause of action for specific performance, the trial court did not abuse its discretion in denying plaintiffs the right to file additional pleadings for specific performance.