Marken v. Buchanan ( 1980 )

Mr. JUSTICE WEBBER,

dissenting:

While admitting that this a very close case, I respectfully dissent from the conclusion reached by my brethren and suggest that in order to reach that conclusion they have first declared a statute to be unambiguous, and then proceeded to read language into it. This is accomplished by taking “amount unpaid” and reading “amount of principal unpaid.” Furthermore, the majority opinion focuses on one sentence in a rather lengthy section. It is a familiar principle of statutory construction that all parts of a statute should be read in such a fashion as to yield an harmonious whole. People ex rel. Castle v. Taylor (1955), 7 Ill. 2d 501, 131 N.E.2d 108.

A later part of the same section 13 (Ill. Rev. Stat. 1977, ch. 57, par. 13), reads:

“If during such period of stay defendant pays the entire amount then due and payable under the terms of the contract other than such portion of the principal balance due under the contract as would not be due had no default occurred plus costs and, if the contract provides therefor, reasonable attorney’s fees as fixed by the court, and cures all other defaults then existing, the contract shall remain in force the same as if no default had occurred.”

It could not be seriously argued that under this section a defendant may reinstate the contract by paying only what is due as principal. Indeed, there is a specific provision exempting any possibility of being required to pay the entire principal balance on account of the default.

If, as was its undoubted right, the legislature intended a different standard to apply in determining whether a stay should be granted from determining the amount needed to reinstate a contract, the language should be specific in that regard. Otherwise, and lacking such differentiation, all parts-of the statute must be read as a cohesive whole. The principle is well stated in 2A Sutherland, Statutory Construction (4th ed. 1973) §46.06:

‘“It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.’ A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.”

I do not agree that the statute is unambiguous; “amount paid” is susceptible of a variety of interpretations, but one should look first within the four corners of the statute itself for an interpretation before going to the extrinsic matter of its overall purpose.

I agree that the overall purpose of the statute is to afford some relief

to contract buyers, not a period of redemption as suggested by the majority, but a “grace period” as indicated by the author of the footnote in Johnston. However, such a grace period is available only to those who qualify for it.

I would affirm the trial court.