SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Mr. JUSTICE ALLOYdelivered the opinion of the court:
The appellees in the above-entitled case, in a petition for rehearing, have suggested that the doctrine of impossibility of performance should not be applied in the instant case on the basis that there was an alternative performance which has not become impossible, i.e., reconveyance of the right-of-way premises to the plaintiffs and cite 17 Am. Jur. 2d Contracts §422 (1964), relating to impossibility of performing alternative promise. In that section, it is also stated:
“It has been said that it is impossible to lay down any universal rule as to whether the impossibility of performing one of two promises in the disjunctive excuses nonperformance of the other, but that the principle to be applied in each case must depend on the intention of the parties, to be ascertained from the nature and circumstances of the transaction and the terms of the agreement.”
The facts and circumstances in the instant case clearly show that this principle is not applicable under the facts in the instant case and the conduct of the parties as shown in the record. The promises on the part of the city of Rock Island in the instant case were not alternative promises, but were several, mutually supportive in nature, and involved rezoning of a tract of real estate owned by the plaintiffs Moffit, most of which was not involved in, but adjoins, the right-of-way premises conveyed. The city also agreed as part of the agreement, notably, to construct water and sewer connections to the property of plaintiffs, and to build a fence around the right-of-way premises, as well as to construct the road, to which we have referred in the course of the opinion.
The city of Rock Island has substantially completed these expressed obligations insofar as it was able to do so, including the construction of the road to a point where the State of Illinois has assumed control of completion to connect to another roadway. The bringing of the sewer and water ready for connections to be made to the plaintiffs’ land at points to be designated by the plaintiffs has been completed. The rezoning for plaintiffs and the construction of the fence have also been completed. The only reason the roadway was not actually connected to the Centennial Expressway results from the fact that the State had taken over the construction of such connection. The State, apparently, has not completed it for the reason that specific money has not as yet been appropriated for such completion by the legislature.
There are, and will be, as shown by the record, substantial benefits to the plaintiffs through the water and sewer connections which plaintiffs maintain the city is required to provide for plaintiffs as part of the understanding between the parties. The city does not dispute this obligation and recognizes it as a continuing obligation even though the cost of such connections has risen from an original *66,000 to a total of approximately *200,000. As a result, the city of Rock Island has done all in its power to complete fully the obligations which it has undertaken with the plaintiffs. Plaintiffs continue to insist, as asserted by plaintiff, S. Wallace Moffitt, in his testimony upon the right of plaintiffs to have the sewer and water connections when and where designated by plaintiffs, irrespective of whether or when the roadway connection to the Centennial Expressway is finished by the State.
There is also nothing in the record showing that any of the parties indicated that there would be any difficulty in completing the construction of the roadway within the five-year period referred to, and the record shows that the city of Rock Island, did, in fact, pursue the construction to the fullest extent permissible.
Nothing in the record indicates that the clause about “return of the deed” to plaintiffs, was intended to assume anything other than that the city of Rock Island should undertake to construct the road and perform other obligations including furnishing water and sewer connections to plaintiffs. None of the parties anticipated that the State would take over the connection of the road to the expressway after the city had substantially completed its obligations undertaken with the Moffitts. It would be entirely contrary to the understanding of the parties that, after completion of the road and making available water and sewer connections for the plaintiffs, the city would be required to deed the premises now occupied by 92nd Avenue and containing the road and other facilities. Equitable principles derived from the doctrine of impossibility of performance must, under the facts and actions of the parties in the instant case, relieve the city of an arbitrary action which would penalize the city, for the reason that the State had taken over the connection of the roadway, a circumstance wholly unanticipated by the parties to this action.
It is apparent from the contentions made by the plaintiffs that they have no objective in this cause other than to force a new condemnation proceeding so that the plaintiffs may obtain a larger sum than the *30,000 paid, at the same time the city is now required to spend approximately *200,000 to provide the premises of plaintiffs with sewer and water connections. It is clear from the record that neither of the parties anticipated that the State would intervene in this cause. The provision in the agreement, referring to the five-year time period, obviously was designed to cause the city to expedite performance on its undertaking within that period. That the city has done specifically, and it has completed all of its obligations to the extent possible. The fact that it was unable to complete the connection to the Centennial Expressway resulted wholly and entirely from action by the State which rendered performance on the part of defendant city to make the connection, impossible, even though the city expended substantial sums on completion of the roadway across plaintiffs’ property, on the right-of-way granted and paid for, as well as completion of all other parts of the agreement.
It is apparent from the record and the facts in the instant case that all the undertakings of the city were in conjunction with the construction of 92nd Avenue, the installation of sewer and water facilities, the construction of a fence around the right-of-way, and rezoning of plaintiffs’ property. There was no alternative provision which could or would discharge the city of Rock Island from the obligations which were part of the agreement as between the city of Rock Island and the plaintiffs.
In applying equitable principles to the issue involved, it is clear that impossibility of performance has properly discharged the city of Rock Island of its obligation to complete the roadway connection within the five-year period, but does not discharge its obligation to make available sewer and water connections. The fencing and rezoning arrangements, also involved in the agreement as between the plaintiffs and the city, were completed.
Plaintiffs in this case also raised on petition for rehearing, for the first time, on appeal, a contention that plaintiffs have been deprived of the constitutional rights to just compensation for the premises. Such issue was not raised previously and should not be considered on rehearing. Likewise, in view of the record in this case, that particular contention has no support in the record, since the understanding and agreement of the parties was made voluntarily and for consideration deemed adequate by the parties, and evidenced by an unconditional conveyance and other undertakings on the part of the city, as part of the consideration for the right-of-way land referred to in this case.
STOUDER, P. J., and SCOTT, J., concur.