Bituminous Casualty, 301 Ill. App.3d at 726, citing Institute of London, 234 Ill. App.3d at 79. Institute, in turn, cited Sabath v. Mansfield, 60 Ill. App.3d 1008, 1016, 377 N.E.2d 161 (1978) in support of this proposition However, Sabath involved a lawsuit in which a stockholder of a corporation sued a company based on a construction contract. Sabath stands for the well-settled proposition that a person may sue as a third-party beneficiary of a contract only when the contract clearly shows that it was made for his direct benefit.
In such case, "the inducement for delay has ceased to operate sufficiently before the expiration of the limitation period so as to afford the plaintiff ample time within such period" to file its action. Sabath v. Mansfield, 60 Ill. App.3d 1008, 1014 (1978); see also Anderson v. Wagner, 79 Ill.2d 295, 322 (1979) (asserting that "[i]f at the time the plaintiff discovers the `fraudulent concealment' a reasonable time remains within the applicable statute of limitations, [section 13-215] of the Limitations Act does not toll the running of the limitations period"). Plaintiff alleges that, on December 14, 1993, defendant first informed decedent that the September 1990 Pap smear indicated cancer and that defendant misrepresented to decedent that a letter was sent regarding such results.
The supreme court found after examining the Kupianen factors that the trial court abused its discretion in denying the plaintiff leave to file an amended complaint. Loyola Academy is not applicable here since it involved an unappealable summary judgment order. Instead, we find that Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 377 N.E.2d 161, is helpful. In Sabath, the plaintiff filed a multiple-count suit against a corporation and its individual officers and directors.
Further, only a party to the contract or those in privity with a party may sue on the contract ( Dale v. Groebe Co. (1981), 103 Ill. App.3d 649, 653, 431 N.E.2d 1107, 1111), except that a third-party beneficiary may sue on a contract made for his benefit. ( Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 1016, 377 N.E.2d 161, 168; Carson Pirie Scott Co. v. Parrett (1931), 346 Ill. 252, 257, 178 N.E.2d 498, 501.) The Chas were not a party to the Albert Corp./Roth contract.
"[A] defendant is not estopped to raise a limitations point because of any alleged 'lulling' of the plaintiff into inaction until after the limitation period where the 'lulling' period, if there was any, expired months before the statute barred the action and where there was ample time and opportunity for the plaintiff to avail of any legal rights he has." Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App.3d 267, 274-75; accord, Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 1014; see also Annot., Plaintiffs Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, 44 A.L.R.3d 760, 764-65 (1972). The approach taken by the appellate court in Reat and Sabath is consistent with the rule applied by the supreme court in cases where a plaintiff relies on section 22 of the Limitations Act.
It argues that because plaintiff failed to appeal the order or file a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) the trial court lost jurisdiction of the case and could not reinstate the count. (See Fox v. Department ofRevenue (1966), 34 Ill.2d 358, 215 N.E.2d 271; Sabath v. Mansfield (1978), 60 Ill. App.3d 1008, 377 N.E.2d 161.) Because the September 14, 1977, order was final and appealable, and plaintiff failed to challenge that order, we find that the count was not properly reinstated. Therefore, the judgment which was based on the count must be reversed.
"[O]nly a party to a contract or those in privity with him may enforce the contract. . . . The mere fact that a person was injured by a breach of contract or that he acted in reliance on it does not create a right to pursue a claim for breach of contract which he otherwise would not have had." Sabath v. Mansfield, 377 N.E.2d 161, 168-69 (Ill. App. Ct. 1978) (citations omitted). As to Count II, K-FIVE is dismissed without prejudice. As to Count III, KEC and K-FIVE are also dismissed without prejudice. If certain contract rights were assigned, Plaintiffs must amend their Complaint to say so.
"[O]nly a party to a contract or those in privity with him may enforce the contract....The mere fact that a person was injured by a breach of contract or that he acted in reliance on it does not create a right to pursue a claim for breach of contract which he otherwise would not have had." Sabath v. Mansfield, 60 Ill.App.3d 1008, 18 Ill.Dec. 8, 377 N.E.2d 161, 168–69 (1978) (citations omitted). As to Count II, K–FIVE is dismissed without prejudice. As to Count III, KEC and K–FIVE are also dismissed without prejudice. If certain contract rights were assigned, Plaintiffs must amend their Complaint to say so.
Rozny v. Marnul, 250 N.E.2d 656, 664 (Ill. 1969) (plaintiff's injury due to a land surveyor furnishing a faulty survey and unilaterally promising its accuracy arose from "tortious misrepresentation," which sounds in tort and is therefore not subject to the ten-year statute of limitations for contracts). See also Sabath v. Mansfield, 377 N.E.2d 161, 168 (Ill. App. Ct. 1978) ("[a] suit for fraud committed in the breach of a written contract is governed by the five-year statute applicable to 'all other civil actions not otherwise provided for'").
It is the case, of course, that under Illinois law the same set of facts can support claims under both contract and tort principles. See Knox Coll. v. Celotex Corp., 430 N.E.2d 976, 982 (Ill. 1981); Sabath v. Mansfield, 377 N.E.2d 161, 167 (Ill.App.Ct. 1979); Stanley v. Chastek, 180 N.E.2d 512, 519 (Ill.App.Ct. 1962). In general, however, claims sounding in contract arise from the duties imposed by a contract, whereas claims arising from breaches of duties imposed by law sound in tort.