See In re Layton, 138 B.R. 219, 222 (Bankr.N.D.Ill.1992); Hettermann v. Weingart, 120 Ill.App.3d 683, 688-89, 76 Ill.Dec. 216, 220, 458 N.E.2d 616, 620 (1983); Bocchetta v. McCourt, 115 Ill.App.3d 297, 300, 71 Ill.Dec. 219, 221, 450 N.E.2d 907, 909 (1983); Tobin v. Alexander, 63 Ill.App.3d 397, 400, 20 Ill.Dec. 368, 370-71, 380 N.E.2d 45, 47-48 (1978); Kelly v. Germania Sav. & Loan Ass'n, 28 Ill.2d 591, 594, 192 N.E.2d 813, 816 (1963). Kingsley v. Roeder, 2 Ill.2d 131, 137, 117 N.E.2d 82, 85 (1954).
o.2d 1085, Giammattei v. Egan (1949), 135 Conn. 666, 68 A.2d 129, Supreme Court Rule 366(b)(1)(i) (134 Ill.2d R. 366(b)(1)(i)), and the Restatement of Contracts (Second) § 212, comment d (1979). Plaintiff maintains that defendants cannot succeed on their claims of forfeiture and waiver under Illinois law. Specifically, plaintiff maintains that defendants will not prevail for the following four reasons: First, the purchase agreement will not support a forfeiture; second, equity condemns defendants' conduct; third, the avoidable consequences rule will neither sustain defendants' forfeiture theory nor relieve them of their obligation to pay prejudgment interest on funds withheld for over seven years; and fourth, defendants cannot allege that plaintiff knowingly and intentionally relinquished its right to the earnest money as is required to impose a waiver under Illinois law. Plaintiff relies upon Peck v. Chicago Rys. Co. (1915), 270 Ill. 34, Jones v. Seiwert (1987), 164 Ill. App.3d 954, Bocchetta v. McCourt (1983), 115 Ill. App.3d 297, Hart v. Lyons (1982), 106 Ill. App.3d 803, Lempera v. Karner (1979), 79 Ill. App.3d 221, Aden v. Alwardt (1979), 76 Ill. App.3d 54, Epstein v. Yoder (1979), 72 Ill. App.3d 966, Parenti v. Wytmar Co. (1977), 49 Ill. App.3d 860, Allstate Insurance Co. v. National Tea Co. (1975), 25 Ill. App.3d 449, Slavis v. Slavis (1973), 12 Ill. App.3d 467, Walgreen Co. v. American National Bank Trust Co. (1972), 4 Ill. App.3d 549, Hudson v. Shepard (1900), 90 Ill. App. 626, and Ford v. Illinois Refrigerating Construction Co. (1890), 40 Ill. App. 222. • 2 The role of the court is to enforce a valid contract.
• 2-4 Further, when a party to a real estate contract declares a forfeiture, a court follows the provisions in the contract. ( Bocchetta v. McCourt (1983), 115 Ill. App.3d 297, 299-300, 450 N.E.2d 907, 909.) As a general rule, courts do not look upon contract forfeitures with favor. ( Hockenbury v. Lorentz (1976), 35 Ill. App.3d 983, 985, 343 N.E.2d 90, 92.) As a result, courts must construe contract forfeiture provisions strictly and narrowly.
Chicago Limousine Serv., Inc. v. Hartigan Cadillac, Inc., 563 N.E.2d 797, 802 (Ill. 1990) (citations omitted). An agreement between parties to mutually rescind a contract may be express or implied, see Kirchhoff v. Rosen, 592 N.E.2d 371, 375-76 (Ill. App. 1992), but if implied, “the circumstances or conduct relied on must be positive, unequivocal and inconsistent with the existence of a contract to warrant a finding of abandonment.” Sohaey v. Van Cura, 607 N.E.2d 253, 266 (Ill. App. 1992); see also Bocchetta v. McCourt, 450 N.E.2d 907, 910 (Ill. App. 1983).
When a party to an installment real estate contract attempts to declare a forfeiture, the proper method is to follow the provisions in the contract. Bocchetta v. McCourt, 115 Ill.App.3d 297, 300, 71 Ill.Dec. 219, 221, 450 N.E.2d 907, 909 (1st Dist. 1983). Although the actions of removing the Debtor's personalty from the front yard were performed by off-duty Village employees, those individuals were acting as agents for the Creditors who paid them, and as such, the Creditors are therefore liable.
When a party to an installment real estate contract attempts to declare a forfeiture, the proper method is to follow the provisions in the contract. Bocchetta v. McCourt, 115 Ill.App.3d 297, 300, 71 Ill.Dec. 219, 221, 450 N.E.2d 907, 909 (1st Dist. 1983). Generally, a mere default ipso facto does not operate as a forfeiture unless a notice or some positive act by the seller shows the intent to forfeit. Brown v. Jurczak, 397 Ill. 532, 74 N.E.2d 821 (1947); Kelly v. Germania Sav. Loan Asso., 28 Ill.2d 591, 595, 192 N.E.2d 813, 816 (1963); Lovins v. Kelley, 19 Ill.2d 25, 28, 166 N.E.2d 69, 71 (1960); Miles Homes, Inc. v. Mintjal, 17 Ill.App.3d 642, 646, 307 N.E.2d 724, 728 (4th Dist. 1974). There are some circumstances, however, where no notice is required, as where the contract declares in unequivocal terms that failure to make payments at the time agreed should ipso facto work a forfeiture of the contract.
We further note that "[a]bandonment of a contract may be deduced from circumstances or from conduct which clearly evidences an abandonment thereof." Bocchetta v. McCourt, 115 Ill. App. 3d 297, 301 (1983). "The acts relied upon must be positive, unequivocal and inconsistent with the existence of the contract to constitute abandonment."
The acts relied upon must be positive, unequivocal and inconsistent with the existence of the contract to constitute abandonment." ( Bocchetta v. McCourt (1983), 115 Ill. App.3d 297, 301, 450 N.E.2d 907, 910.) Even assuming, arguendo, Schlangen's alleged oral agreement could be found to constitute a valid extension of the Agreement, we believe the record justifies a finding that Schlangen abandoned said oral agreement.
• 6 A party seeking to enforce a forfeiture provision bears the burden of proving that the right to a forfeiture clearly and unequivocally exists and that the exercise of forfeiture does not result in injustice. ( Bocchetta v. McCourt (1983), 115 Ill. App.3d 297, 450 N.E.2d 907.) In addition to the failure of the plaintiffs to meet their burden of proof that there was a breach, entry of a forfeiture here will result in gross injustice.
The acts relied upon to establish abandonment of a contract must be positive, unequivocal and inconsistent with the existence of the contract. ( Bocchetta v. McCourt (1983), 115 Ill. App.3d 297, 450 N.E.2d 907.) In the case at bar, the plaintiffs presented unequivocal evidence that Larry ordered Sue out of the Lexington residence and that Clemons thereupon took possession of the residence and has occupied it ever since.