dissenting:
The doctrine of merger is inapplicable under the facts here. I, therefore, dissent. The principles in reference to merger are well settled. If the terms of a contract for sale of real estate are fulfilled by delivery of the deed, there is a merger; but, if there are provisions in the contract which delivery of the deed does not fulfill, then the contract is not merged in the deed as to such provision and the contract remains open for the performance of such terms. (Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 87, 51 N.E.2d 132.) The general statement of the exception to the contract doctrine of merger is that an executory agreement, verbal or written, for performance of distinct and separate acts, is not merged into a subsequent instrument which is executed in only part performance of the agreement’s provisions, but remains in full force and effect as to provisions not performed. Koelmel v. Kaelin (1940), 374 Ill. 204, 209, 29 N.E.2d 106.
Here, the real estate sales contract between the parties provided that the taxes were to be based on the most recent ascertainable real estate taxes and prorated to the date of possession. This was to be determined by the parties at the closing upon proper documentation separate from the contract. There was an erroneous calculation of the prorated real estate tax credit. The doctrine of merger has no application to this type of error on a closing statement v/hich is not in conflict with the contract. In fact, the contract contemplated that the taxes were to be separately calculated and prorated by the parties. This, obviously, presumes a correct calculation and, I believe, is what was intended by the parties. (See Biehl v. Atwood (1986), 151 Ill. App. 3d 763, 766, 502 N.E.2d 1234.) Thus, the proration of taxes is independent of the contract and was not merged into the deed upon delivery.
Moreover, as the doctrine of merger is not a popular one with modern courts, it will not apply where a mutual mistake occurs. (Hagenbuch v. Chapin (1986), 149 Ill. App. 3d 572, 576, 500 N.E.2d 987.) Although the majority concludes that plaintiff did not raise the issue of mutual mistake of fact below “as a ground for recovery,” the fact is that defendants invoked the doctrine as a defense and they are thereby bound by any exceptions to the doctrine notwithstanding plaintiff’s original pleadings. Both parties assumed the erroneous calculation was correct and, under the facts here, were mutually mistaken.
Plaintiff is entitled to reimbursement for the overpayment of real estate taxes caused by the erroneous calculation.