dissenting:
Because the majority opinion omits certain facts which I believe are critical to the disposition of this case, a brief factual statement is necessary.
On December 12, 1986, the parties entered into a real estate purchase agreement (Agreement) whereby plaintiffs were obligated to purchase and defendants to sell 63.8 acres of land in unincorporated Lake County. The Agreement provided that plaintiffs had 60 days from the date of execution (feasibility period) to review the title as well as the feasibility of the properties’ development. Pursuant to the parties’ subsequent agreement and plaintiffs’ $7,500 payment, the feasibility period was extended from 60 to 150 days. Paragraph 9 of the agreement states in pertinent part as follows:
“Purchaser shall notify Seller no later than three hundred (300) days following the expiration of the feasibility period whether the aforementioned conditions have been satisfied or that the same have been waived by Purchaser. If Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate; provided, however, that, if all of the aforementioned conditions have not been satisfied or waived by Purchaser on or before such date, Purchaser, at Purchaser’s sole and absolute discretion, may extend such date for periods of thirty (30) days each for no more than ten (10) periods by written notice from Purchaser to Seller and by the payment to Beneficiary of the sum of Five Thousand and no/100 Dollars ($5000.00) (the Extension Payment) for each thirty-day extension.”
The parties agree that adding the 150-day feasibility period to the 300-day period provided for in the contract obtains a date of March 10, 1988. Therefore, this is the date referred to in the contract wherein it states “[i]f Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate.” (Emphasis added.) There is no question that prior to “such date” (March 10, 1988) the purchaser notified the seller that aforesaid condition had not been satisfied and waived. This fact is evidenced by the following:
(1) On October 9, 1987, the Lake County Zoning Board of Appeals recommended a denial of the application to rezone the premises.
(2) On November 19, 1987, Prime sent a letter to counsel for the defendants, stating:
“Although at the present time, it appears unlikely that Prime will receive approval from Lake County for the rezoning of the property to permit the development thereon of single-family residences on lots no larger than two (2) acres Prime cannot waive the rezoning contingency, thereby restricting its options with respect to the property.”
(3) That prior to any action being taken by the board of trustees of Lake County on the rezoning application, Prime withdrew its application because of the unfavorable recommendation of the Lake County Board of Appeals.
(4) On December 30,1987, Prime stated in a letter to defendants: “If, despite Prime’s efforts, the conditions are not satisfied on or before March 10, 1988, Prime has the option to terminate the agreement or to extend the period during which the conditions may be satisfied by up to ten thirty-day periods.”
Thus, according to its express and unambiguous terms, the contract would terminate on March 10,1988, unless purchaser
“extend[ed] such date for periods of thirty (30) days each for no more than ten (10) periods by written notice from Purchaser to Seller and by payment to Beneficiary of the sum of Five Thousand and No/100 Hundred Dollars ($5,000.00) (the Extension Payment) for each thirty-day extension.”
On March 9, 1988, plaintiffs hand delivered a written notice of their intent to extend the Agreement for 30 days along with the required payment. On April 8, 1988, plaintiffs hand delivered a second notice and payment extending the Agreement until May 9, 1988. Plaintiffs then delivered a timely extension notice and payment in May, June, July and August. With the August notice and payment, plaintiffs enclosed a letter stating that the Agreement was extended until September 6, 1988. However, the following month plaintiffs did not deliver an extension notice or payment until September 8, 1988, which was two days after the Agreement had expired. When defendants received the late notice and payment, they returned them and informed plaintiffs that the Agreement had terminated.
The majority takes the position that “paragraph 9 did not require plaintiffs to tender their notice and payment before the prior period ended” because “the Agreement failed to specify when such payment was due.” 215 Ill. App. 3d at 1070.
I respectfully submit that the majority position begs the question. It is crystal clear that the extension was to expire on September 6, 1988. In fact Prime, with its August notice and payment, enclosed a letter stating that the Agreement was extended until September 6, 1988. That date came and passed without delivery of either the extension notice or payment. This fact, under the unambiguous terms of the Agreement, effected a termination.
It seems axiomatic that an agreement, once terminated according to its express and unambiguous terms, cannot be later extended without the agreement of both parties. The very nature of an extension is to continue what is presently in effect. At the risk of being repetitive, I must again emphasize that the Agreement terminated before any attempt at an extension was made. The majority, in effect, causes resurrection of the Agreement under the guise of extension.
The majority opinion also states:
“Even assuming that the September payment was untimely, the result would not be termination. We reject the argument that the contract was terminated by the mere passage of time. Two provisions of paragraph 9 expressly required the plaintiffs-purchasers’ affirmative act to terminate the Agreement.
* * *
Plaintiffs here never informed defendants that the conditions were not met or that plaintiffs refused to waive the conditions, despite defendants’ request for a written waiver. *** By the Agreement’s own terms, it did not terminate.” 215 Ill. App. 3d at 1072-73.
With respect to this statement, I suggest that the majority opinion is mistaken.
Rudnick’s deposition exhibit No. 26 is a letter of August 5, 1988, from Robert Rudnick, vice-president and general counsel for Prime, to the defendants which states in relevant part as follows:
“Please be advised that, as of the date hereof, the conditions to Prime’s obligation under the Agreement have not been satisfied or waived. Furthermore, please be advised that, pursuant to paragraph 9 of the agreement, Prime hereby elects to extend the date during which such conditions must be satisfied by thirty (30) days. In connection [sic] such extension, I have enclosed herewith a check payable to Howard Pomper and Barbara Pomper in the amount of $5,000.00, which represents an ‘Extension Payment’ as that term is defined in paragraph 9 of the Agreement.
Based on my calculations, Prime now has until September 6, 1988 to satisfy the conditions set forth in the Agreement, and has the right to extend the period to satisfy the conditions by four (4) additional thirty-day periods.” (Emphasis added.)
Not only does this letter state that the conditions had not either been satisfied or waived, it also implies that Prime had until September 6, 1988, to either satisfy or waive the conditions or the Agreement would terminate.
Finally, I find that the conduct of the parties clearly evinced the intent that if the conditions were not either satisfied or waived prior to March 10,1988, the Agreement would terminate.
Under the Agreement, the time within which the conditions precedent could be satisfied or waived terminated on March 10, 1988. On March 9, 1988, the plaintiffs hand delivered a notice and payment for 30 days’ extension which was effective until April 9, 1988. The day before this extension expired, plaintiffs delivered another extension notice and payment which was effective until May 9, 1988. Plaintiffs delivered a timely extension notice and payment on May 9, 1988, as well as on June 8, 1988, July 8, 1988, and August 5, 1988. In the August extension notice, plaintiffs acknowledged that this extension period was effective until September 6, 1988. However, they did not deliver a notice and extension payment until September 8, 1988. On September 9, 1988, defendants returned the extension payment to plaintiffs and informed them that the Agreement had terminated. Because plaintiffs made six timely extension payments and also acknowledged that the August extension period expired on September 6, 1988, I submit that their conduct demonstrated that they construed the provisions of the Agreement to require that an extension payment and notice for subsequent extensions were due prior to the expiration of the current period.
For all the foregoing reasons, I would reverse the judgment of the circuit court.