In either case, the essence of the escrowee's position is that its powers to deal with the subject matter of the escrow are strictly limited to the terms of the escrow deposit. ( Filosa v. Pecora (1976), 44 Ill. App.3d 912, 358 N.E.2d 1213.) Where the conditions of the escrow have been satisfied, the escrowee is under an obligation to deliver the subject matter deposited with him to the grantee or obligee, whereas if the conditions of the escrow are not met, the escrowee must return the subject matter to the depositor. ( Filosa v. Pecora.)
Furthermore, Illinois courts have stated that the law relating to the deposit of special funds requires the bank to "return[ ] the identical thing or money deposited." Filosa v. Pecora, 44 Ill.App.3d 912, 917, 3 Ill.Dec. 528, 358 N.E.2d 1213 (1st Dist.1976). Therefore, this Court concluded that the CD was a special purpose account.
However, an escrowee is not the judge of whether the conditions of an escrow agreement have been performed. Filosa v. Pecora, 44 Ill.App.3d 912, 916, 3 Ill.Dec. 528, 358 N.E.2d 1213, 1216 (1976). Moreover, there was evidence that Mr. Moyer was pressured by the sellers into disbursing the escrowed funds, that he attempted to obtain Mr. Forloine's written agreement to the disbursement and that he obtained a hold-harmless agreement from the sellers in connection with the disbursement of the escrowed funds.
We agree with La Salle on this point, for we have held that the escrowee is not the judge of whether the conditions of an escrow agreement have been performed. ( Filosa v. Pecora (1976), 44 Ill. App.3d 912, 916, 358 N.E.2d 1213, 1216.) However, this is not a case where the escrowee is making a judgment as to whether the conditions of the escrow have been complied with by the parties to the escrow.
The proceeds never became available to the bank, and the I.R.A. remained a special deposit until that distribution of the proceeds had been made. See Filosa v. Pecora (1976), 44 Ill. App.3d 912, 358 N.E.2d 1213. For the reasons stated, the judgment of the circuit court of Cook County is affirmed.
• 2-3 "The depository, or escrowee, under an escrow agreement has been described as both a trustee ( Stark v. Chicago Title Trust Co. (1942), 316 Ill. App. 353, 45 N.E.2d 81) and a special agent ( Ortman v. Kane (1945), 389 Ill. 613, 60 N.E.2d 93)." ( Filosa v. Pecora (1st Dist. 1976), 44 Ill. App.3d 912, 915, 358 N.E.2d 1213; see also Toro Petroleum Corp. v. Newell (1st Dist. 1974), 33 Ill. App.3d 223, 229, 338 N.E.2d 491.) In the case at bar, the facts and circumstances surrounding the escrow support the conclusion that the defendant escrowees were acting as special agents of the party making the deposit (Burton's), and not the party for whose benefit the deposit was made (plaintiffs).