dissenting:
I respectfully dissent from the resolution of this matter by the majority. I dissent because I cannot agree with the legal analysis of the majority that suggests we are confronted here with a simple breach of contract under an agreement requiring performance in the defendant in either of two ways, -with the choice of performance in the plaintiff. The majority has concluded that since the defendant refuses to perform in the manner the plaintiff has presently chosen, the defendant has breached the contract. I do not see this case that simply. It is not that the defendant refuses to perform in the manner' the plaintiff has chosen, but it is impossible for him to perform in that manner, and the plaintiff knows it. Prior to requesting performance in the Consort Room under the terms of the contract (I do agree that a contract existed between the plaintiff and the defendant, Westin Hotel), the plaintiff had used his membership three times, all at the Chelsea Room. In January 1984, the plaintiff for the first time requested a reservation at the Consort Room (which had closed at the end of 1983), apparently to take advantage of the discounted meal in that restaurant provided by his diners’ membership card. Hence, the issue under these circumstances is whether the defendant breached its membership contract with the plaintiff where the restaurant chosen by the plaintiff no longer existed and where the other restaurant that was provided as one of the alternatives in the agreement was available.
Initially, it must be noted, as the majority itself observed and as the defendant argues here and the trial court found after reviewing the agreement, the defendant did not promise to keep the Consort Room open or to maintain a restaurant with the “alleged” ambience of the Consort Room. I say “alleged,” since it is merely an allegation in the complaint that the Consort Room was more deluxe than the Chelsea Room and had a certain ambience. The majority apparently seems to believe that judicial notice may be taken of its “ambience” when they state, “It seems unlikely that people would have thought it worth their while to pay $50 to enable them to receive a free meal when they dined át either the fancy Consort Room or the less exclusive Chelsea Room/at the choice of the defendant.” However, no description was given of either restaurant in the membership offer or the membership itself, nor was any evidence offered regarding the nature of the restaurants.
The trial judge, in his decision, also noted that there was nothing in the undertaking, whether it be the offering or the membership card or both, that constituted the agreement, that indicated that the defendant hotel promised to maintain an expensive a la carte menu in the Consort Room or that whatever might be the expectations of a dinner club member, those expectations would have any relevancy in the decisions of the management in considering how to run either or both restaurants. He further noted that if both rooms continued to operate, but changed their menus so that one sold hamburgers and the other sold pizza, the plaintiff would still be able to receive what he had bargained for, that is, a discounted meal. I believe that the trial court was correct in its finding that the defendant hotel did not contract to satisfy the subjective preference of the plaintiff or the other club members, but merely contracted to provide a discounted meal at one of two specifically named restaurants.
Under such circumstances, I believe it is clearly the law in Illinois that where a contract provides for alternative performances, unless the right of election between the alternative modes of performance of a contract is otherwise expressly restricted by the provisions of the contract itself, the right to elect which of the alternatives will be performed is in the promisor. (Fidelity Federal Savings & Loan Association v. Pioneer National Title Co. (S.D. Ill. 1977), 428 F. Supp. 1382; see also Sperry & Hutchinson Co. v. Spiegel, Cooper & Co. (1923), 309 Ill. 193, 140 N.E. 864; Metz v. Albrecht (1869), 52 Ill. 491; 12a Ill. L. & Prac. Contracts sec. 245 (1983); 17 Am. Jur. 2d Contracts sec. 363 (1964).) Accordingly, inasmuch as the Chelsea Room was open, and the plaintiff did not allege that the defendant was other than ready and willing to provide performance there, the complaint did not state a cause of action for breach of contract.
The majority distinguished the Illinois Supreme Court case of Sperry & Hutchinson Co. v. Spiegel & Cooper Co., which expressly found that where alternative means of performance are provided in a contract, the rule in this State and the general rule in the country is that the choice of the manner of performance rests with the promisor. I, however, do not find their basis of distinction persuasive. Initially, the majority noted that the department store which had issued the profit-sharing stamps, redeemable in merchandise or cash in Sperry & Hutchinson, had rendered itself incapable of performing by disposing of its merchandise to another department store. However, the majority seems to attach some importance to the fact that there was no evidence that the new store refused to redeem the stamps in merchandise, even though the majority itself recognized that this had nothing to do with the holding of the case, which was that the option concerning the manner of redemption rested with the promisor. Nevertheless, the majority then finds the distinguishing feature from the present case to be that the new department store there had comparable merchandise to that of the old department store, whereas here the Consort Room “closed down completely.” I do not find these facts, in any way, relevant in view of the explicit holding of Sperry & Hutchinson, let alone persuasive under such circumstances.
Nor do I find persuasive their asserted distinction in the Sperry & Hutchinson case that the value of the merchandise and the cash redemption there was approximately equal, i.e., the value of the stamps was $3.50 in merchandise or $2.50 in cash. The contract here, contrary to the majority’s position, actually promised a discounted meal at either of the two expensive restaurants — -one of which was only slightly more expensive than the other.
The majority also would distinguish Sperry & Hutchinson on the basis that apparently the stamps were “free” for shopping at defendant’s department store. It is surely naive to suggest in a business setting that a promotional device is free or a gift; it is actually a cost of inducing one to purchase at the defendant’s store and truly a legitimate cost of doing business reflected in the store’s pricing policies. Hence, it could be argued in the same sense that the majority has called the stamps “free,” that the meal here was “free,” or without consideration, since the $50 fee for 12 meals can hardly be said to cover the cost of the meals. Of course, in fact, the consideration for the agreement is the inducement to purchase (here food and there merchandise) at the defendant’s place of business.
The final point of distinction noted by the majority, i.e., that restrictions existed in the membership card while none were contained on the stamps, is, in my opinion, again, irrelevant and actually incorrect. The existence or nonexistence of the fact that restrictions existed in the one case and not the other seems to me to be a distinction without a legal difference, since, as was noted earlier, this was not the basis for the decision in Sperry & Hutchinson. However, an important restriction did in fact exist in the Sperry & Hutchinson case concerning the use of the stamps there, which appeared on the stamps themselves, viz, they were redeemable only in person and only by the person to whom they had been issued to originally. This restriction, on the other hand, was a decisive factor in that case while, conversely, the restrictions here were not.
The majority in its opinion found a Massachusetts case to be similar to the present case and persuasive. In that case the agreement provided that the promisor could pay for railroad ties in stock in either one of two different railroad companies. Under those circumstances, the Massachusetts court held that it was the promisee who could choose the stocks in which payment would be made. While it is important to observe, initially, that this is not an Illinois case, there is an even more important reason why that case is not similar to the present case: both means of performance there were still possible.
In the present case, the fact that both means of performance are not available is to me probably the most important aspect of this case in determining whether the defendant has breached its contract. This is so, because, if this contract did not provide for alternative modes of performance which the defendant could elect to perform in its option, then it was a contract in which the defendant promised to provide either of two performances at the plaintiff purchaser’s option, one of which is now no longer possible to perform. In this latter situation, I believe the law certainly excuses performance by the promisor, if the impossibility occurs without the fault of the promisor, i.e., the performance has not been intentionally frustrated to prevent the promisee from receiving it. (See Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, cert. denied (1945), 327 U.S. 804, 90 L. Ed. 1029, 66 S. Ct. 968; Mouhelis v. Thomas (1981), 95 Ill. App. 3d 181, 419 N.E.2d 956; 6 A. Corbin, Contracts sec. 1339 (1962); 18 S. Williston, Contracts secs. 1952, 1954, 1961 (3d ed. 1978).) Here, there is no allegation by the plaintiff that the closing of the Consort Room was other than a proper business decision having nothing whatsoever to do with the plaintiff or the other members of the dining club. Hence, under these circumstances, there is no breach of contract; the promisor may provide the alternative performance (see 18 S. Williston, Contracts sec. 1961 (3d ed. 1978)), or, if the promisee does not desire this, which apparently is the case here, the promisor may obtain a rescission of the contract and will be entitled to a return of his consideration, here a $50 membership fee, less than quantum meruit value of the defendant’s previous performance, i.e., the value, at least, of the three prior performances. (18 S. Williston, Contracts sec. 1972 (3d ed. 1978).) However, in this case, the plaintiff did not ask that the contract be rescinded and his consideration be returned, but rather only brought a breach of contract action. Furthermore, it appears that the plaintiff did not request the trial court for leave to amend his complaint, but apparently stood upon the complaint as drafted. Thus, under either analysis, the complaint of the plaintiff here was properly dismissed by the trial court. See Illinois Tool Works v. Sierracin Corp. (1985), 134 Ill. App. 3d 63, 479 N.E.2d 1046.
Additionally, I would also like to observe that I do not see how, under any circumstances, even assuming a cause of action, a proper class action can be stated. (HI. Rev. Stat. 1985, ch. 110, par. 2 — 801 et seq.) First, I do not believe that the class is so numerous that a class action is necessary, and, secondly, I do not believe that any common question of law or fact would predominate here or that the plaintiff would be an adequate representative of any such class. (See HI. Rev. Stat. 1985, ch. 110, par. 2 — 801.) The particular loss of the plaintiff here is not really a monetary one (which, in any event, would be most difficult to measure), but is really a subjective one dealing with his perceived concept of ambience and dining atmosphere, as well as his concept of what constitutes a “deluxe” menu. Of course, each member of the Westin Dinner Club would have their own view of what they might have found most appealable about the defendant’s offer of a discounted meal at either of the two restaurants here. Additionally, if the plaintiff had brought an action for rescission there would, clearly, be no basis for a class action since a suit for rescission is by its nature peculiarly personal to the plaintiff and specifically related to the particular facts of this case.
Therefore, based on the reasons set forth above, I would affirm the judgment of the circuit court of Cook County which dismissed with prejudice the complaint in the present case.