concurring in part and dissenting in part:
While I agree with the majority that the judgment of the trial court should be affirmed regarding the issues of breach of the agreement and dissolution of the partnership, I dissent from the majority’s decision to reverse that portion of the judgment awarding damages due to the Ashers’ refusal to accept or match the Zale offer.
The majority acknowledges that the trial court carefully considered the evidence and evaluated the credibility of the witnesses in deciding that Susman did not breach the agreement and that dissolution of the partnership was the appropriate remedy. I believe that the trial court gave this same careful consideration to the issues relating to the Zale offer, and since the decision of the trial court regarding these questions was not against the manifest weight of the evidence, it should be affirmed.
In construing an agreement, the primary objective is to determine and give effect to the intention of the parties at the time they entered into the contract. (Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697, 427 N.E.2d 585, 587.) The intention of the parties must be gathered from the contract as a whole and not merely from any clause standing alone. (Goldblatt Brothers, Inc. v. Addison Green Meadows, Inc. (1972), 8 Ill. App. 3d 490, 495, 290 N.E.2d 715, 717-18.) If the trial court determines that the agreement is ambiguous, then parol and extrinsic evidence are admissible to explain and ascertain what the parties intended. (See Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 744, 365 N.E.2d 1028, 1032.) While the issue of whether or not an ambiguity exists is a question of law (Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697, 427 N.E.2d 585, 587), where an ambiguity has been found and the extrinsic evidence is in conflict, a fact question is presented for determination by the trier of fact. See Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 582-83, 312 N.E.2d 27, 29.
Here, the trial court permitted extrinsic evidence to be introduced at trial. This evidence was contradictory in material respects. In finding that under the terms of the agreement the Ashers were required to match or accept the Zale offer, the trial court weighed the evidence relating to this issue and found the weight of the evidence to be in favor of Susman and against the Ashers.
Since the buy-out provision, when construed as part of the agreement as a whole, admits of more than one interpretation, I believe the trial court properly admitted and considered extrinsic evidence on the issue. The testimony regarding the buy-out provision was important to a determination of the parties’ intent under the agreement. The intent of the parties was a factual question to be determined by the trier of fact. A reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trier of fact who had the opportunity to see and hear the witnesses, unless the findings of the trier of fact are contrary to the manifest weight of the evidence. (Riemer Brothers, Inc. v. Marlis Construction Co. (1978), 64 Ill. App. 3d 80, 83, 380 N.E.2d 1160, 1163.) Here, the record does not demonstrate that the trial court’s finding that the Ashers were required by the buy-out provision to match or accept the Zale offer is against the manifest weight of the evidence. Therefore, the finding should not be disturbed.
For the same reasons, I believe that the trial court’s finding that the Zale offer was a bona fide offer under the agreement should also be upheld. The record demonstrates that the trial court was fully apprised of the substance of the Zale offer, and the record does not establish that the trial court’s finding that the offer was a bona fide offer is against the manifest weight of the evidence.
Since I believe that the trial court’s judgment awarding Susman money damages on the basis of the Zale offer and the buy-out provision of the agreement should be affirmed, I will address the related issues raised by the Ashers.
The trial court awarded Susman as damages the amount he would have realized under the Zale offer ($645,000) or his share of the proceeds from a judicial sale, whichever sum is larger. The Ashers contend that this was error because the trial court should have forced an election of remedies by Susman. However, the doctrine of election of remedies is applicable only in instances where the plaintiff would otherwise receive a double recovery, or the defendant has actually been misled by the plaintiff’s conduct, or res judicata can be applied. (District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, 550-51, 404 N.E.2d 787, 789.) Here, Susman would not receive a double recovery since the two measures of damages are alternative rather than additive. Also, the evidence and the findings of the trial court establish that the Ashers were not misled, and res judicata is plainly not applicable. Thus, there is no basis for applying the doctrine of election of remedies to the present case.
In addition, since the trial court entered judgment in favor of Susman on the merits, fairness dictates that Susman should not be compelled to make an election as to the damages he is to receive before the alternative amounts are determined. Otherwise, it may cause an unjust result to the prevailing party and a benefit to the party against whom judgment was entered on the merits. On this same point, the Ashers’ additional contention that the trial court’s judgment is speculative simply because it provides for alternative relief is also untenable. All that the judgment requires is that Susman choose between the alternative damages once the judicial sale is completed. Merely because the judgment gives Susman the right to choose between damages does not mean that the judgment is speculative.
The Ashers also argue that the amount of the money judgment is excessive because the trial court determined the damages as of April 24, 1978, rather than October 1, 1978. The Ashers’ argument is based on the premise that the Zale proposal, if accepted by the Ashers, was to have closed on August 1, 1978, and that thereafter the partnership would have had to wind up its affairs and distribute its assets pursuant to the agreement, which means that Susman would not have received his pro rata share until approximately October 1, 1978. The Ashers’ argument is without merit because the trial court properly concluded that Susman was entitled to payment for his partnership interest as of the date when the Ashers breached the agreement, which under the facts occurred as of the expiration of the Zale offer on April 24, 1978. The Ashers also argue that the trial court’s award of damages was excessive because no partnership expenses were deducted from the prospective Zale proceeds. However, the amount of damages was a factual question to be determined by the trier of fact based upon the evidence offered at trial by the respective parties. Here, the Ashers do not point to any specific evidence that was offered at trial which resulted in a miscalculation by the trial court in its determination of the amount of the damages.
The Ashers next contend that the trial court improperly awarded Susman prejudgment interest because “the time when the Ashers should have paid Susman the amount due cannot be precisely determined; and the amount due is not subject to precise computation.” However, as previously stated, the trial court properly determined that the breach occurred as of April 24, 1978. Therefore, the damages, including prejudgment interest, were properly calculated as of that date. It follows from this fact, plus the fact that the trial court properly determined the amount of the judgment to be $645,000, that the amount due is subject to precise computation.
Accordingly, I believe the judgment of the trial court should be affirmed in its entirety.