dissenting:
As I agree with the entry of summary judgment in favor of defendant, I respectfully dissent. I believe the parties intended to make time of the essence in the contract to purchase real estate. The contract contained an express clause that “time is of the essence.”
While such a clause may not necessarily be conclusive as to whether a delay in performance constitutes a material breach of the contract (see Hart v. Lyons (1982), 106 Ill. App. 3d 803, 805-06), there is, in my opinion, no question of material fact presented here as to whether the parties intended strictly to enforce the “time is of the essence” clause in the contract to purchase real estate.
I am not persuaded that defendant’s failure to fill in the date on which he accepted the contract precludes summary judgment in his favor as a matter of law. Although the date of acceptance is critical in determining the date upon which plaintiffs must have deposited the additional earnest money, defendant’s failure to fill in the date does not constitute a waiver of the “time is of the essence” clause. The date of acceptance could be established by parol evidence. In fact, the date of acceptance in this case was established by the affidavits as November 10, 1988, at the latest. The additional earnest money was paid to defendant on November 22, 1988. Thus, defendant’s failure to date the contract is not a waiver of strict enforcement of the “time is of the essence” clause as the date upon which the earnest money was paid to defendant was clearly outside the five-day provision in the contract.
The majority alternatively posits that even if the parties intended strictly to enforce the “time is of the essence” provision of their contract, there remains a question of material fact as to whether the parties agreed to waive or modify this provision. In this regard, the majority relies on the affidavits of plaintiff, defendant and defendant’s attorney. Upon examining the various affidavits, I disagree that they raise a question of material fact as to whether the parties agreed to waive or modify the “time is of the essence” clause. Although the affidavits address plaintiffs’ request to deliver the additional earnest money to defendant’s attorney rather than defendant, they are devoid of any reference to the five-day time limit contained in the contract. The fact that plaintiffs sought to make alternate arrangements as to whom delivery of the earnest money was to be made does not, without more, give rise to an inference that the parties intended to alter the five-day provision. The affidavits do not raise a question of material fact as to a waiver or modification of the “time is of the essence” provision, and I would affirm the granting of summary judgment in favor of defendant.