author: Mr. Justice Stone

text:
    J. L. Cottrell, Appellee, v. Albert W. Gerson, Appellant.

      Opinion filed July 21, 1938.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.

      L. H. Holland, of Wood River, and Roscoe Forth, of Granite City, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   Mr. Justice Stone

delivered the opinion of the court.

This is a replevin suit brought by the plaintiff appellee, J. L. Cottrell, the tenant, hereinafter referred to as the plaintiff, against the defendant appellant, Albert W. Gerson, his landlord, hereinafter referred to as the defendant, seeking to recover possession of certain barber shop furniture and fixtures owned by the plaintiff and allegedly wrongfully taken and detained by the defendant, and damages for their detention, or damages for their conversion. The cause was tried before the court and a jury. A verdict was returned finding the issues for the plaintiff, finding the right to possession of the property in the plaintiff, and assessing his damages for the detention thereof at $1,640. A remittitur of $540 was accepted by the plaintiff, at the court’s suggestion, a motion for a new trial was denied, and from the judgment thereafter rendered for the return of the property to the plaintiff and for damages for its detention in the amount of $1,100, the defendant appeals.

The material facts are: the defendant owned the building located at 19 East Ferguson avenue, in Wood Biver, Illinois. By a written lease dated July 1, 1931, the defendant leased a portion of the premises to the plaintiff for the term of one year, beginning July 20, 1931 and ending July 19,1932, to be used by the plaintiff as a barber shop. The rent was $600 for the term, payable in monthly instalments of $50 a month in advance on the 15th day of each month.

After December, 1931, the plaintiff lessee became delinquent in his rent, until at the end of the original term of the lease, he owed the defendant $300 in past due rent. On July 20, 1932, the plaintiff and his wife, Grace Ellen Cottrell, gave the defendant a judgment note, dated that day, in the amount of $300 due one day after date, and without interest. The parties evidently had in mind the delinquent rent at the time the note was given, but they differ as to whether the note was given in payment thereof or merely as further security therefor or evidence thereof.

At or about the time the original term of the lease expired, in July, 1932, the parties had considerable discussion as to the future occupancy of the premises. The plaintiff evidently could not, if he was to continue in possession, pay for the future the same rent as provided by the written lease, — $50 per month, — and the parties finally agreed upon a rental of $35 per month, payable, in advance. Whether the understanding was that the continued occupancy by the plaintiff at that rent should be on a month to month tenancy basis, or for another term of a year as upon a holding over, upon the same terms as provided in the original lease, except as modified by the reduction in the rent, is also a disputed question, — the plaintiff claiming that the lease was terminated and the arrangement for the future was upon a month to month tenancy basis, and the defendant claiming that the plaintiff was to continue in possession under the original lease, for another year, except as to the change in the amount of the rent.

In any event, the plaintiff continued to occupy the premises after the end of the term of the original lease, with the consent of the defendant, until December 24, 1932, at which time the plaintiff left the premises and did not thereafter occupy them. Prior to then, the plaintiff, though he had paid some rent in the meantime, had again fallen behind on his rent, and owed the defendant, on December 20, 1932, $10 for past rent and $35 for rent for the ensuing month, — up to January 20, 1933. Further discussion then ensued as to the payment by the plaintiff of the amount evidenced by his note, $300, and the $10 and $35 items. The defendant insisted upon the payment of $345 or that the plaintiff surrender the premises and finally on December 24, 1932 made a written demand therefor on the plaintiff. The defendant had issued a distress warrant claiming $345 rent due but this was never served on the plaintiff and nothing further was ever done about that matter.

The plaintiff apparently indicated that he could not immediately pay the $300, but would pay the $10 and the $35 items. The defendant was evidently fearful that the plaintiff might move out and that he would lose his rent. At any rate the result was that the plaintiff finally on December 24th turned his key to the premises over to the defendant. The parties differ as to the terms upon which the key was turned over and as to the legal significance thereof. On the evening of that same day, the plaintiff called on the defendant and tendered him in cash $14.80, being the $10 item for accrued rent for the month ending December 20th, and $4.80 for the rent accrued from December 20th to the 24th. The defendant refused the tender. The plaintiff then tendered in cash $314.80, being the amount due on the note for $300, and the respective items of $10 and $4.80. The defendant also refused that tender.

The defendant continued to operate the barber shop using the property which is the subject matter of this suit from December 24, 1932 on. Shortly after December 24th, the defendant prepared a so-called “Landlord’s Sale Notice,” a copy of which was mailed to the plaintiff, giving notice that he would sell the fixtures on January 16, 1933, to satisfy the rent, claiming authority to do so under the terms of the lease of July 1, 1931. The plaintiff made another cash tender to the defendant on January 14,1933 of $314.80, which was again refused, and on January 16th instituted this replevin suit. The proposed sale by the defendant was never held.

The suit having been begun and some pleadings having been filed prior to January 1, 1934, the provisions of the Civil Practice Act in that regard are not applicable.

The pleadings seem unnecessarily complicated. Pleadings are intended to be helpful to the court in reaching an issue or issues, and in gaining, an understanding of a case. They should not become so confused as to be a hindrance rather than a help in attaining those ends. We shall not endeavor to set them out in detail. So far as material, though, the declaration alleged a wrongful taking and detention; a wrongful detention; a conversion; and also contained a count in trespass on the case for an alleged wrongful taking. Demurrers by the defendant thereto were overruled and the defendant then pleaded over. The pleas in substance denied the taking and detention; alleged the goods to be those of the defendant and not the plaintiff; set up an alleged voluntary pledge thereof by the plaintiff as security for the rent; alleged the taking was for rent in arrears; and alleges the taking was pursuant to a lien reserved in the lease of July 1, 1931. Certain replications and additional replications were filed by the plaintiff, to which the defendant demurred. The plaintiff then filed a new so-called fourth count, to which the defendant also demurred. The defendant’s last demurrers were evidently in part sustained and in part overruled, and all pleas previously filed by the defendant were extended to the new fourth count. Later additional and amended replications were filed by the plaintiff, to all of which the defendant demurred, which demurrers were overruled and the defendant then rejoined thereto.

Section 1 of the Replevin Act (ch. 119, Ill. Rev. Stat. 1937, sec. 1 [Jones Ill. Stats. Ann. 109.499]), provides:.

“That whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession, in any court of competent jurisdiction.”

There is no question in this case but that the plaintiff was and is the owner of the property in dispute. Nor is there any question but that the defendant has taken and detained the property. The primary issue at the outset, therefore, is whether the defendant has wrongfully taken and detained the property. That depends upon, first, whether the defendant landlord had any legal right so to take and detain the property under the circumstances of this ease, either at common law or by virtue of some statute, and, if not, then, second, whether the defendant had such right by virtue of some voluntary act of the plaintiff lessee in giving the defendant a lien thereon by the written lease (if it was in effect at the time of the taking and detention), or by making a voluntary pledge thereof as security for rent.

At common law a landlord had no lien upon any property of his tenant as security for the rent or for anything else. The tenant’s property was his own, to do with as he pleased, subject to no incumbrance in favor of the landlord. The landlord at common law had the right to bring a distress proceeding against the tenant for rent and if he did he thereby acquired in effect a lien on the tenant’s property for the past due rent. But until the distress proceedings were actually brought he had no right to detain the tenant’s property. This has been changed somewhat in England by the statute of Anne (8th Anne, ch. 14), but, insofar as that statute changes the common law it is not in force in this State because, among other reasons, it is of a date later than the fourth year of the reign of James I. The common law rule, as we understand, is the law in Illinois today, except insofar as it has been modified or changed by some Illinois statute. (19 Ruling Case Law pp. 975, 976; Morgan v. Campbell (1874) 22 Wall. (U. S.) 381, 22 L. Ed. 796; Hadden v. Knickerbocker (1873) 70 Ill. 677; Herron v. Gill (1884) 112 Ill. 247; First Nat. Bank of Joliet v. Adam (1891) 138 Ill. 483; A. N. Kellogg Newspaper Co. v. Peterson (1896) 162 Ill. 158; Powell v. Daily (1896) 163 Ill. 646; Rowland v. Hewitt (1885) 19 Ill. App. 450; Van Wegen v. Grand Aerie of Fraternal Order of Eagles (1918) 212 Ill. App. 575; Faubel v. Michigan Blvd. Bldg. Co. (1934) 278 Ill. App. 159.

Such statutory changes as have been made in the common law in our State in these respects are found in chapter 80, Ill. Rev. Stat. 1937 (Landlord and Tenant), sections 1 et seq. [Jones Ill. Stats. Ann. 72.01 et seq.]. No provision of those statutes specifically changes the common law rule and specifically gives the landlord a lien on any of the tenant’s property except section 31, which gives the landlord a lien on the crops grown or growing on the demised premises, — a type of property not here involved. The absence of any specific provision in the statutes giving a landlord a lien on any other property of the tenant, and the presence of but this one provision conferring such a lien on that one type of property, crops, together with the provisions of section 34 of that chapter [Ill. Rev. Stat. 1937, ch. 80, § 34; Jones Ill. Stats. Ann. 72.35], to the effect that: “Subject to the right of the landlord to distrain for rent a tenant shall have the right to remove from the demised premises all removable fixtures erected thereon by him during the term of his lease, or of any renewal thereof, or of any successive leasing of the premises while he remains in possession in his character as tenant.” — are strongly persuasive that the common law rule as to the landlord’s right to detain the property of his tenant for rent is still the law in Illinois.

No distress proceedings having ever been brought and perfected in this case, the defendant landlord had no lien on the property of his tenant here in question, either at common law or by virtue of any statute, and therefore had no right to take and detain it on that account.

Nor do we think the taking and detention can be justified as having been voluntarily provided for by the plaintiff tenant under a supposed landlord’s lien for rent provision in the original written lease of July 1, 1931. The term of this lease expired July 19,

1932. If it was no longer in force in December of that year that would be a sufficient' answer to the defendant’s argument on that score. The defendant has urged, though, and we think with considerable merit, that though the original term of the lease had expired in July of 1932, it was nevertheless still in force, except as modified by the reduction of the rent, in December of 1932, because the plaintiff tenant by his continued occupancy of the premises after July 19, 1932, thereby became a tenant as upon a holding over for another year (that being the original term of the lease) upon the same terms as were provided therein, including the supposed lien for rent provision, except as so modified as to the rent.

"Where a tenant under a lease for a year or years holds over after the expiration of the term of the lease, there being no new leasing agreement, the landlord may, at his election, treat the tenant as a trespasser and evict him, or may treat him as a tenant from year to year thereafter upon the same terms as in the original lease, or (if those have been partly changed), upon the terms of the original lease as so modified. A “holding over” is presumed by the law from the mere con-tinned occupancy by the tenant of the premises, in the absence of proof of a new agreement between the parties as to such occupancy. The election to treat the tenant as a holdover tenant is exclusively that of the landlord, and such a holdover tenancy may conceivably exist even though contrary to the tenant’s intention. The tenant’s intention alone is not a material matter. Necessarily, though, these rules as to holdover tenancies have no application where there is a contrary mutual understanding as to the tenant’s continued occupancy of the premises. If there is such an agreement, that takes the place of the presumption as to holding over that the law otherwise raises. But the burden of establishing such an agreement is upon the tenant. The landlord does not have the burden of disestablishing it. In the absence of a preponderance of the evidence establishing such contrary agreement, the presumption of law as to a holding over upon the terms of the original lease or upon those terms as modified applies. 16 Ruling Case Law pp. 1160-1167; Prickett v. Ritter (1854) 16 Ill. 96; McKinney v. Peck (1862) 28 Ill. 174; Clinton Wire Cloth Co. v. Gardner (1881) 99 Ill. 151; Goldsbrough v. Gable (1894) 152 Ill. 594; Condon v. Brockway (1895) 157 Ill. 90; Weber v. Powers (1905) 213 Ill. 370; Eppstein v. Kuhn (1906) 225 Ill. 115; Miller v. Ridgely (1885) 19 Ill. App. 306; Johnson v. Foreman (1891) 40 Ill. App. 456; Rand v. Purcell (1894) 58 Ill. App. 228; Berkowsky v. Cahill (1897) 72 Ill. App. 101; Kelly v. Armstrong (1908) 139 Ill. App. 467; Bockmann v. Davis (1912) 172 Ill. App. 505; Sherriff v. Kromer (1924) 232 Ill. App. 589; Weiss v. Danilczik (1931) 262 Ill. App. 551.

Substantially the only testimony in the case at bar relating to this matter of holding over is that of the plaintiff and the defendant. In view of the presumption of a holding over which arises from the continued occupancy of the premises and of the fact that the burden is on the plaintiff tenant of establishing by a preponderance of the evidence that there was a different new agreement as to the future occupancy thereof and that there was not a holdover we do not think the plaintiff has sustained that burden and believe under the circumstances of this case that the tenancy after July 19, 1932 was a hold over tenancy from year to year upon the terms of the original lease except as modified as to the amount of the rent.

We have, though, examined the lease of July 1, 1931 and find therein no provision reserving to the defendant landlord a lien for rent or anything else upon any property of the plaintiff tenant. We can find no definite provision in the lease specifically reserving such a lien. There is a provision to the effect that the tenant’s right to possession shall terminate upon his default as to any covenants on his part, without notice, and giving the landlord the right in such event immediately to re-enter. There is also a provisipn as to confessing judgment for any payments due from the tenant. But neither of those provisions gives the landlord any lien on any of the tenant’s property. In fact there are only two places in the lease where the word “lien,” meaning the so-called landlord’s lien for rent, is used. One is the clause that: “If at any time the said lessor shall consent in writing to the subletting in whole or in part of said premises, said lessee shall be responsible for all acts of such sub-lessee, and lessee shall not be released from any obligation herein contained, and all property of any sub-lessees whether subject to legal exemption or not shall be bound and subject to the lien given as above for all payments to be made under this lease.” And the other is the clause immediately following, that: “It is further agreed that in case default be made in the payment of the rent or other payments to be made under the terms of this lease, or in case of bankruptcy, failure or assignment for the benefit of creditors made by the lessee, then the lessor may at his option declare the full amount of the unpaid portion of the rent for the entire term of this lease to be due and payable together with all court costs, attorney’s fees or other expenses in connection therewith for which the lessor may have become liable, and any claim made therefor by the lessor shall be deemed his election to so declare the same due and payable and the lessor’s lien herein reserved shall thereupon extend to all property of the lessee on the premises leased at the time of such failure. . . .” (Italics ours).

Neither of these clauses, in themselves, specifically and definitely reserves a lien to the landlord on any of the tenant’s property for anything. Both apparently refer back to some supposed lien provision supposedly included in an earlier part of the lease,- — -the first clause using the language, . . . “the lien given as above,” — and the second clause using the language, . . . “the lessor’s lien herein reserved. . . .” But neither clause in itself confers a lien, and we find no other lien provision either preceding or succeeding those clauses. The burden of establishing a landlord’s lien by virtue of a written lease is upon the lessor, and the lease, in this regard at least, will be construed more strictly against the lessor, if there is ambiguity. We do not think the defendant landlord has met that burden in the present case, and are of the opinion that the provisions of the lease are too indefinite, vague, and ambiguous to be considered as creating such a lien on any of the tenant’s property. 16 Ruling Case Law pp. 699, 700, 978; Borden v. Croak (1889) 131 Ill. 68; First Nat. Bank of Joliet v. Adam (1891) 138 Ill. 483; Downey v. Chicago Title & Trust Co. (1899) 86 Ill. App. 664.

Assuming therefore the lease to have been in effect in December of 1932, no provision thereof gave the defendant landlord a lien on the plaintiff tenant’s property, and consequently it did not authorize the taking and detention thereof.

Nor finally, do we think the taking and detention can be justified as having been voluntarily permitted by the plaintiff tenant on account of a supposed pledge of the property as security for the payment of the rent. Such pledge, if any, must be inferred from the conduct of the parties, and particularly their acts on December 24,1932. There was no written pledge agreement. The plaintiff tenant did turn over to the defendant his key to the premises in which the property was located. But the testimony is conflicting as to the circumstances under which this act was done, and the parties differ as to the legal inference, if any, to be drawn therefrom. The burden of establishing a pledge was upon the defendant, and though the delivery of a key to premises may upon occasion and under some circumstances constitute a symbolical delivery of the goods located therein and effect a valid pledge thereof (Keiser v. Topping (1874) 72 Ill. 226; Hagemann v. Hagemann (1903) 204 Ill. 378; Vining v. Gilbreth (1855) 39 Maine 496; Thomas v. Graves (1914) 89 Vt. 339; Nevan v. Roup (1859) 8 Iowa 207); the delivery of a key does not necessarily, in and of itself, always have that legal effect. The matter depends largely on the facts and intention of the parties. The testimony on this issue being conflicting and the burden of proof in that regard being on the defendant, we do not feel justified in disturbing the verdict of the jury and judgment of the court below for that reason. The jury evidently concluded that there was no pledge, and we cannot say this was against the weight of the evidence.

The defendant having taken and detained the property in question without a distress proceeding having been brought, and he having had no legal right to do so at common law or by statute, or by the voluntary act of the plaintiff in giving a lien therein or in pledging the same, the taking and detention were wrongful and it would seem that replevin would lie.

The defendant urges, though, that replevin does not lie at the suit of a tenant to recover his property from the landlord under such circumstances as exist in this case because here some rent was admittedly due at the time the-suit was begun. We do not regard that as a correct principle of law. Section 1 of the Replevin Act [Ill. Rev. Stat. 1937, ch. 119; Jones Ill. Stats. Ann. 109.499], above, provides, as the basic principle underlying a replevin suit, that: . . whenever any goods or chattels shall have been wrongfully dis-trained, or otherwise wrongfully taken or shall be wrongfully detained, an action of replevin may be brought. . . . ” The primary, if not only inquiry on this phase of the matter in such a suit is: was the property wrongfully distrained, or wrongfully taken or detained? If wrongfully distrained or taken or detained, replevin will lie, the other prerequisites being present. If not, it will not lie. There is no qualification therein that replevin will not lie, assuming there has been a wrongful distraint or wrongful taking or detention, merely because the plaintiff owes the defendant some rent at the time the suit is brought. That the plaintiff may owe the defendant rent at the time the replevin suit is begun is perfectly immaterial, if there has been a wrongful distraint or taking or detention (the other prerequisites to replevin being present). The plaintiff nevertheless has a cause of action in replevin and the suit will lie. The defendant might, if rent be due, conceivably attempt to recoup or set off the rent in the replevin suit, or bring a separate suit against the tenant therefor, but those are different matters and do not go to destroy the plaintiff’s cause of action in replevin. 23 Ruling Case Law pp. 854-856, 873-874. The plaintiff does appear to owe the defendant some rent, so far as the record indicates, but the defendant did not seek to recoup or set this off in this suit. Whether that matter has been otherwise adjusted or a separate suit been brought therefor we are not advised.

We have examined the cases referred to by counsel for the defendant and other authorities and find nothing in them that sustains the principle urged by the defendant in cases where the facts are as they are here, nor that mitigates against the view we take of the question. Lindley v. Miller (1875) 67 Ill. 244, and Hare v. Stegall (1871) 60 Ill. 380 simply hold that a distress for rent is proper and legal where there is any rent due, and that, therefore, where there is some rent due and a distress has been brought, a replevin suit will not lie at the instance of the tenant to recover the property, even though the distress may have been excessive. 16 Ruling Case Law pp. 1007,1028, 1029. This for the reason that in such instances the property was not “wrongfully distrained” and the case did not therefore come within section 1 of the Replevin Act. The tenant’s remedy in such a case was not replevin but trespass on the case on account of the excessive distress. In those cases a distress had been brought and properly brought because at least some rent was due. There was no wrongful taking by the landlord and necessarily no basis for a cause of action in replevin. In the instant case no distress proceedings were brought, — those started by the landlord being abortive. Not having brought distress, the landlord had no right to detain the property. There therefore was a wrongful taking and detention, and replevin lies. Colean Mfg. Co. v. Jones (1905) 122 Ill. App. 172; Wetsel v. Mayers (1879) 91 Ill. 497; Frink v. Pratt & Co. (1889) 130 Ill. 327; and Lillard v. Noble (1896) 159 Ill. 311, all involve only the landlord’s statutory lien on crops grown or growing on demised premises, the methods for its enforcement, and the conflicting rights of the landlord, the lessee, and third parties, and have no bearing on the question immediately at hand in this case. In Atkins v. Byrnes (1874) 71 Ill. 326, also, a distress proceeding had been brought, which alone distinguishes it from the present case, and further, the principal matters there discussed were whether the right to distrain was lost by the acceptance by the landlord of a chattel mortgage for the rent, and whether distraint could be had before the expiration of the term if rent was due, which have no application to the present case.

In view of our conclusion on this question and on the question of whether there was or was not a voluntary pledge of the property, whether the plaintiff did or did not make a proper tender of the rent due either before or at the time the suit was brought would seem to be immaterial and we shall therefore not discuss that issue.

It is also urged by the defendant that when the property in dispute was not taken on the replevin writ, the plaintiff could only thereafter proceed in trover and that the counts in the declaration in trespass on the case are improper in a replevin suit. Without discussing the merits of the defendant’s argument on this score, it appears that the defendant demurred to the declaration and to various other pleadings of the plaintiff and these pleading questions appear to have been raised by the demurrers. So far as it is material, the defendant’s demurrers were overruled and he pleaded over in each instance. He did not stand by any of the demurrers.

It is a well settled rule of common law pleading that where a party demurs to a pleading and the demurrer is overruled and the party pleads over, that generally constitutes a waiver of the demurrer and the party cannot raise the questions presented by the demurrer upon a subsequent appeal. If the party demurring desires to preserve the question presented by the demurrer, he generally must stand by it and not plead over, after it has been overruled. This rule does not apply if there is such a substantial defect in the pleading demurred to as would render it insufficient to sustain a judgment, but we do not believe the plaintiff’s declaration is here subject to such a substantial defect. The defendant here, therefore, having failed to stand by his demurrer or demurrers after they were overruled, and having pleaded over, waived the questions thereby raised and cannot now assert them on appeal. Puterbaugh, Common Law Pleading and Practice, 10th ed., secs. 103 and 104; Beer v. Philips (1822) Breese (Ill.) 44; Gilbert v. Maggord (1838) 1 Scam (Ill.) 471; Camp v. Small (1867) 44 Ill. 37; Shreffler v. Nadelhaffer (1890) 133 Ill. 536; Heimberger v. Elliot Frog & Switch Co. (1910) 245 Ill. 448; McGovern v. City of Chicago (1917) 281 Ill. 264; Berry v. Turner (1917) 279 Ill. 338; McFadden v. Fortier (1858) 20 Ill. 509; Foltz v. Hardin (1891) 139 Ill. 405; Chicago & Alton R. Co. v. Clausen (1898) 173 Ill. 100.

The defendant also contends that the $300 note given by the plaintiff and his wife on July 20,1932 was not a payment of the rent in that same amount which was then due. We think this point, if well taken, is wholly immaterial, for we find nothing in the judgment below holding to the contrary, or, for that matter, holding either way on that question, and in no event does the judgment below depend for support upon that matter.

The defendant also complains of the refusal by the court of certain instructions requested by bim and of the giving of certain other instructions requested by the plaintiff. The defendant’s first and third instructions, which are substantially the same, and which were refused, relate generally to the matter of a holdover tenancy and the applicability during the holdover period of the terms of a prior lease. They, in general, correctly state the abstract principle of law to which they relate, but they latently assume that there was some provision in the original lease in this case which gave the landlord a lien on his tenant’s property, or authorized him to detain it for rent, without a distress proceeding. In view of our conclusion on that question, the refusal of these instructions was either not error, or was immaterial and not reversible error.

The defendant’s second and fourth instructions, which were also substantially the same, and which were refused, relate generally to a landlord’s supposed legal right to seize and hold a tenant’s personal property for rent. The legal questions therein involved we have already discussed. We do not think these instructions state a correct principle of law, and therefore the refusal thereof was not error.

The plaintiff’s first instruction, which was given, relates generally to the elements of a cause of action in replevin. The legal questions therein involved we have already discussed. In general, we think it correctly states the principle of law to which it relates, and the giving thereof was, therefore, not error.

The plaintiff’s second instruction, which was given, was.: “The Court instructs the Jury that if you believe from the preponderance of the evidence that the plaintiff was entitled to possession of the property in question when this suit was commenced, and that it had been wrongfully taken from the plaintiff’s possession by the defendant, then you will be required to determine the amount that the plaintiff has been damaged, if any, and in finding the amount of such damage, if any, you may consider that the reasonable rent would be for the said property in question for the period of time the property in question was wrongfully detained, or wrongfully withheld by the defendant, insofar as the same is shown by the evidence in the case.” The defendant argues that this was erroneous because it permitted the plaintiff to recover damages for the detention of the property in suit for a period after the commencement of the suit. The property in the case at bar was not returned to the plaintiff at the beginning of the suit, but was retained by the defendant, he having given a forthcoming bond for that purpose, as permitted by the Replevin Act. Section 14 of that act provides, inter alia, that where a forthcoming bond is given, one of its conditions shall be “that the defendant will pay all costs and damages that may be adjudged against him in such action.” Section 18 provides, inter alia, that as to any property not found and delivered to the plaintiff in the replevin suit, “the plaintiff, if he shall recover, shall be entitled to judgment for the value thereof or his interest therein, and such damages as he shall have sustained by reason of the wrongful tailing and detention.” And section 23 provides: “If judgment is given for the plaintiff in replevin he shall recover damages for the detention of the property while the same was wrongfully detained by the defendant.”

The damages which a plaintiff is entitled to recover in a replevin suit, if he succeeds, for the detention of the property are intended to be full indemnity to him for the damage he may have suffered.- 23 Ruling Case Law p. 908. There is nothing in these various provisions of the Replevin Act limiting the plaintiff to a recovery only for the time of detention prior to suit. They are in very general and broad language, and are sufficient to permit damages to be assessed for the entire period the property is detained, including the time after the commencement of the suit, and not merely for the period prior to suit. To permit the successful plaintiff to recover damages only for the period elapsing prior to suit would certainly not adequately indemnify him for the loss suffered by the defendant’s unlawful detention of the property. Particularly is this true where, as here, the defendant has given a forthcoming bond and thus prevented the return of the property to the plaintiff at the beginning of the suit. The defendant could have surrendered the property to the plaintiff at the commencement of this suit and awaited its outcome, and thus have prevented the further running of damages for the detention thereof. This the defendant did not do. His counsel has referred us to no authority nor have we found any inconsistent with this view. We do not think the plaintiff’s second instruction was erroneous.

While these instructions given for the plaintiff did not refer specifically to any of the defendant’s several defenses, there was no requirement that they do so. The instructions which were given for the defendant seem to present adequately and fairly such defenses as were raised by his pleas and as could properly be raised.

The defendant argues, though, that the damages awarded for detention of the property were excessive. The measure of damages for detention in a replevin suit of this type, where the plaintiff recovers, and where the property involved has a usable value, is the reasonable net rental value thereof. 23 Ruling Case Law pp. 911-913.- The defendant here has unlawfully deprived the plaintiff of the use of the property and should pay a reasonable rental therefor as damages for the period of time at least from December 24,1932, the beginning of the detention, to June 5, 1936, the date of the trial, — approximately 41 months. This appears to have been the measure of damages followed by the court below. The testimony as to this reasonable rental varies from $40 a month for the whole shop, which one of the witnesses for the defendant, a barber, paid the defendant for the rental of the shop for a time after December 24,1932, to $60 a month for the rental of the barber fixtures, which the testimony for the plaintiff tended to establish. The verdict as to damages was for $1,640, which amounts to $40 a month for the 41-month period. The court below required a remittitur of $540, which was accepted by the plaintiff, and the final judgment entered as to damages was.for $1,100, which amounts to approximately $26 a month for the 41-month period. The testimony as to the valué of the property ranged from $345 to $1,600, and its probable original cost was evidently somewhere near $1,700.

Damages for the detention of property of this type may conceivably under some circumstances amount to more than the value of the property itself, but on the other hand, the damages for such detention should not be permitted to become so far out of line with the value of the property as to be clearly disproportionate and oppressive. National Contract Purchase Corp. v. McCormick (1931) 264 Ill. App. 63; James B. Clow & Sons v. Yount (1900) 93 Ill. App. 112; Alley v. McCabe (1893) 147 Ill. 410. The matter of damages in this, as in most cases, is not an easy problem. They are necessarily somewhat speculative, but, if fairly justified by the evidence there is little a court of review can do. The verdict, as remitted, $1,100, is justified by the testimony in the record, and we cannot say that it is contrary to the weight of the evidence on this matter.

The principal point made by the defendant’s motion for a new trial, other than the matters already discussed, so far as it is here argued, is that the court below erred in refusing to continue the case, as requested by the defendant, when it was called for trial, on account of the unexpected appearance, after the jury was sworn and the opening statements made, of Roscoe Forth, of Granite City, Illinois, as one of the attorneys for the plaintiff, — Mr. Forth not having theretofore appeared of record for the plaintiff, and the defendant and his counsel having been surprised thereby. After Mr. Forth appeared the defendant was offered by the plaintiff and the court the privilege of further interrogating the jurors as to their knowledge of or acquaintanceship, if any, with Mr. Forth, and of excusing any of the jurors who might show prejudice on account thereof. The defendant refused further to interrogate the jurors, and the court then proceeded to do so. The record indicates, at this point and elsewhere, that none of the jurors were acquainted with Mr. Forth, knew anything about him, or had ever transacted any business with him. As to the further matter of the supposed close acquaintanceship of the trial judge and Mr. Forth, the defendant has not made a case showing anything in the least improper, in our judgment, in this connection or anything which would tend to indicate bias on the part of the trial judge. Under these circumstances the defendant was not prejudiced by the unexpected appearance of new counsel for the plaintiff, and there appears to have been no abuse of discretion by the trial judge. The court did not err in refusing to continue the case and in overruling the motion for a new trial insofar as it concerned these matters.

Such points as are made by the defendant in his errors relied upon for reversal as have not been briefed and argued will not be considered. We will not search the record for possible error. Bach of the points made which have been argued have been heretofore considered and disposed of specifically or in effect. Some of them, if errors at all, have been waived by the defendant ; some of them, if errors at all, related to immaterial matters and were not prejudicial to the defendant; and the balance of them do not state proper legal principles, and do not therefore constitute error.

The judgment below will be affirmed, with costs.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dove

license: Public Domain

text:
    Aurora National Bank, Appellee, v. Barbara O. Funk, Appellant.
    Gen. No. 9,205.

      Opinion filed September 28, 1937.
    Substituted opinion and rehearing denied August 16, 1938.
    Shearer, O’Malley & Sears, of Aurora, for appellant; Barnabas F. Sears and Kenneth D. Thomas, both of Aurora, of counsel.
    B. P. Alsohuler, of Aurora, for appellee; B. C. Putnam, W. C. O’Brien, E. F. Streit and A. L. Gris-wold, all of Aurora, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On June 25, 1932 the circuit court of Kane county rendered its judgment by confession in favor of the Aurora National Bank and against John B. Olinger and Barbara O. Funk for $18,830 upon five notes, one for $205 dated December 9,1931, one for $10,000 dated March 30,1932, one for $3,000 dated May 11,1932, one for $3,000 dated May 19,1932 and one for $2,500 dated May 23, 1932, all executed by the said John B. Olinger and Barbara O. Funk. Upon this judgment an execution was issued but not served on the defendants and returned unsatisfied on September 23, 1932. In August, 1935, an alias execution was issued and served on Barbara O. Funk and thereafter in September, 1935, the court, upon her motion, entered an order opening up said judgment and granting her leave to answer. On October 16, 1935, her sworn answer was filed. By this answer she averred that the note of $10,000 dated March 30, 1932, upon which judgment was taken, was a renewal of a note originally executed by John B. Olinger to the plaintiff bank on April 1, 1927 for money loaned by the plaintiff to the said John B. Olinger, that as security for the payment of said note, said Olinger, together with his wife, executed a trust deed to the plaintiff, by which they conveyed to the plaintiff certain property located in Aurora improved by a two-story brick business building referred to in this record as the North Broadway property, that thereafter and at various times between that date and April 15, 1930, said note was renewed by the said John B. Olinger, that on this date, April 15, 1930, this defendant was called into the bank and then and there requested by George L. Thon, the cashier of the plaintiff, to affix her signature to said renewal note dated March 31,1930, that prior to that time this defendant’s signature did not appear on said note of March 31, 1930 or any of the prior renewal notes, that upon the request of said cashier to affix her signature to said note, she at first refused so to do, that said cashier then stated to her that it would look better when the auditor came if her signature appeared on said- note and further stated to her that signing said note by her meant nothing to her, as she in no event could be held for more than the North Broadway store, as said note covered said store and said store had been deeded back to her, that relying upon said statements so made by said cashier, in whom she had great trust and confidence, she signed said note of March 31, 1930 and to each renewal thereof, including the note of March 30, 1932, upon which judgment was taken. By her answer she further averred that the note of $3,000 dated May 19, 1932, upon which judgment was taken, was originally signed by Olinger and given by him to the plaintiff for money loaned by the plaintiff to him, that it was renewed at various times and on or about May 19, 1931, upon the same representations by Thon, the cashier, as were made to her in connection with obtaining her signature to the $10,000 note, she, this defendant, placed her signature on the back thereof as she did upon another occasion when the same was renewed, that on May 19, 1932 she, at the request of Thon, affixed her signature thereto with Olinger as a maker. By her answer she averred that at the time she affixed her signature to any of said notes, she never received any benefit or anything of value therefor, and had she known the true character of the transaction she would not have signed either of said notes.

No further steps were taken in the case until January 11, 1936, at which time counsel for the plaintiff served counsel for defendant with notice to the effect that counsel would appear before the court on January 13, 1936 and move the court to set the cause for hearing. On January 13, 1936, counsel for defendant filed a written demand for a jury trial and on the same day filed objections to the cause being tried by the court without a jury. This motion was subsequently denied and on September 3,1936 the trial was had, at the conclusion of which the court took the case under advisement and continued the cause until September 17, 1936. On September 10, 1936 counsel for the defendant served notice on counsel for the plaintiff that defendant would ask leave to amend her answer and on September 17th the amendment was filed by leave of court. By this amendment defendant averred that at the time she affixed her signature to the renewal notes dated March 31,1930 and May 19, 1931 respectively, the said notes had been executed by said John B. Olinger and had been delivered to the bank by Olinger and had been accepted by the plaintiff bank; that at the time she affixed her signature thereto, neither of said notes were then due and that they were each given by her without consideration; that each note signed by her subsequent to March 31, 1930 and May 19, 1931 respectively, in-eluding the ones dated March 31, 1932 and May 19, 1932 respectively, and upon which judgment was confessed herein were renewals of the ones dated respectively March 31, 1930 and May 19, 1931 and were executed by her because of the fact that she had signed the ones dated March 31, 1930 and May 19, 1931. On the same day that this amendment to the answer was filed, the court entered an order finding the issues for the plaintiff and directing that the judgment theretofore rendered on June 25,1932 for $18,830 stand in full force and effect as of the date of its rendition. From this order defendant, Barbara 0. Funk, brings the record to this court for review.

The evidence discloses that John B. Olinger is the brother of appellant, that the North Broadway property was a store building located at No. 28 North Broadway in Aurora and prior to March 31, 1927 was owned by appellant and her brother as tenants in common. On March 31, 1927, appellant conveyed her undivided interest in said property to her brother in order that he might borrow money and execute mortgages thereon to secure the payment of the same. Thereafter Olinger borrowed from appellee $40,000. Evidencing this indebtedness he executed one note for $30,000 and secured the payment thereof by a first mortgage upon said property, and also executed another note for $10,000 and secured its payment by a second mortgage upon said property and, as we understand the record, secured its payment by judgment note for the principal sum of $10,000. After executing these notes and mortgages, Olinger reconveyed to appellant an undivided one-half interest in this property. The original $10,000 note, bearing the date of April 1, 1927, was renewed every six months by Olinger. The note executed by him on September 30, 1929, became due March 30, 1930. According to the testimony of George L. Thon, appellee’s cashier, a renewal note for $10,000, dated March 31, 1930, was prepared and signed by Olinger but the bank refused to accept it until it was executed by appellant. According to the testimony of appellant, this note for $10,000 was executed by her at the request of Thon; that she did so relying upon his statement to her that signing it would mean nothing to her as she would only be liable thereon to the extent of her interest in the North Broadway property, and upon the further statement that the note so executed would look better when the auditors came in. Thon denied making these statements to appellant and testified that the bank was dissatisfied with Olinger ’s credit and that he so told appellant. That he also told her that the bank must have this note further secured by her signature before it would be accepted. That appellant thereupon signed the note which had been already signed by Olinger and the bank then did accept it. The evidence is further that after the new note was so signed by appellant, that then the bank surrendered the maturing note executed by Olinger alone and thereafter, six months later, when the note so signed by both Olinger and appellant matured, Olinger and appellant both executed to the bank a renewal note and continued to do so every six months to and including March 30, 1932, this being the $10,000 note upon which judgment was taken.

Counsel for appellant argue that if appellant’s signature to this note was a condition of its renewal, the records of the bank would have disclosed that it was signed by her before accepted by the bank. Appellee did offer in evidence the liability ledger of the bank which contained a record of the several Olinger notes and this ledger did not disclose that appellant’s name appeared upon the note of March 31, 1930, while it did show that her signature appeared upon the subsequent renewals. This record, however, does disclose that the note of March 31, 1930 was accepted by appellee on April 7, 1930 and the testimony of appellant when called as a witness for appellee under section 60 of the Practice Act was that she signed this note on the day of its date. When testifying on her own behalf, she stated that she signed in March or April about the time the other note became due. The record indicates that her counsel stipulated that this note was signed by her in March, 1930.

Whether appellee had accepted this note of March 31, 1930 before appellant placed her signature thereto was a disputed question of fact. Olinger was not a witness and did not testify. Thon, the cashier of appellee, testified positively that appellant signed this note before the previous one executed by Olinger alone was canceled and returned to Olinger and that the note of March 31, 1930 was not accepted by appellee until after appellant signed it. His evidence is not contradicted unless it be said that the absence of appellant’s name upon the liability ledger showing Olinger’s liabilities refutes his testimony. From all the evidence the trial court found that appellee had not accepted this note until after it had been signed by appellant and that finding, in our opinion, is not only supported by the evidence but is the only conclusion that could be arrived at from the record.

The evidence concerning the $3,000 note is that appellee, on February 23, 1928, loaned Olinger this amount of money and he, Olinger, executed a note therefor to appellee. This note was renewed several times. On May 19, 1931, Olinger executed a renewal thereof to the bank, due six months after date and appellant, at the request of Thon, placed her name on the back thereof beneath the words stamped thereon: “payment of this note guaranteed at maturity.” The records of the bank show that this note was accepted by the bank on June 1, 1931 and the evidence is substantially the same as that pertaining to the $10,000 note of March 31,1930 and our conclusion, from all the evidence, is that appellee did not accept this note until after it had been indorsed and its payment guaranteed by appellant.

Appellant testified with reference to this indorsement that her brother came to Aurora from Chicago to pay appellee interest on this $3,000 note, that she was in the bank with her brother at the time and Mr. Thon asked her to sign the note but that her brother told her to do as she pleased about signing it. She further testified that she placed her name on the back thereof but understood she “would not be holden for it.” By this she testified; “I mean because my name was not on the face of the note I would not be liable. I think that signing on the front would be different.” The evidence further discloses that on November 19, 1931, this note was renewed by Olinger and again indorsed and payment guaranteed by .appellant and when that note became due on May 19, 1932 it was again renewed but appellant executed it then as a comaker with Olinger. The evidence is further that on March 5, 1932, appellant signed a general credit statement to appellee which disclosed that her primary liability to the appellee at that time was $16,005 and that she was also liable to appellee as indorser for her brother in the sum of $3,000. The evidence is further that at the time appellant executed these notes she valued the property covered by the mortgages to appellee at approximately $75,000 and appellant also, at that time, considered her brother perfectly solvent and in order to protect her from financially involving herself upon her brother’s obligations, he, appellant’s brother, conveyed to her his undivided interest in the property. Counsel argue that the record discloses that appellant was a widow, 64 years of age at the time of these transactions, that she had dealt with appellee and Mr. Thon, its cashier, for many years, that she reposed confidence in him, that a fiduciary relationship existed and that when Thon told her she would not make herself liable to any further extent than she was already if she executed with Olinger the $10,000 note that he was guilty of such a misrepresentation as amounted to fraud. Thon denied that he told appellant she would not make herself liable to any further extent than she was already if she executed the $10,000 note and denied that he told her that by signing this note it would not mean anything to her. Appellant testified that she knew if she signed a note on the front that she would have to pay and the evidence is that she always so signed the $10,000 note and on May 19, 1932 so signed the $3,000 note. From a careful consideration of all the evidence in this record, we agree with the trial court that the evidence fails to establish a fiduciary relationship between the parties hereto and does not disclose any fraud practiced by appellee in procuring appellant to execute the two notes involved herein. Nor do we think that there is any merit in appellant’s contention that either of these notes were executed without any consideration therefor. Extension of time by appellee for the payment of the obligations of Olinger was a sufficient consideration for the execution of these notes by appellant. Commercial State Bank v. Folkerts, 200 Ill. App. 385.

It is finally insisted by appellant that the trial court erred in overruling* her motion for a jury trial. Counsel argue that inasmuch as this proceeding was commenced on June 25, 1932, the Civil Practice Act and Rule 26 of the Supreme Court have no application. The pertinent part of Rule 1 of the Supreme Court provides that: “The provisions of the Civil Practice Act with respect to . trial practice (Sections 48-73) shall apply to proceedings instituted prior to January 1,1934 and not on trial prior to that day. Except as provided by this rule, or by written stipulation of parties, or by order of the court, upon notice and motion, proceedings instituted prior to January 1,1934, shall not be governed by the Civil Practice Act.” It is contended that as section 64 of the Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 188; Jones Ill. Stats. Ann. 104.064], deals generally with the question of the manner of waiving a jury, that question is therefore one of trial practice and as Buie 26 relates to trial practice where there has been a confession of judgment and as Bule 1 does not mention Buie 26, therefore Buie 26 cannot be held to be applicable to this proceeding.

The reference in Bule 1 to sections 48-73 is to Article VII of the Civil Practice Act entitled ‘1 Trial Court Practice.” Buie 26 provides that when a judgment by confession is opened up, that then the issues shall be tried by the court without a jury unless the defendant or plaintiff demands a jury at the time of the entry of the order opening up the judgment. The record discloses that while the judgment was rendered on June 25, 1932, the order opening it up was entered in September 16,1935. The provisions of the Civil Practice Act and the Supreme Court rules were in effect at that time. Appellant, on October 16, 1935, filed an answer consisting of eight paragraphs substantially the same as her affidavit filed in support of her motion to open up the judgment. No demand for a jury trial was filed at the time the order was entered opening up the judgment or at the time she filed her answer. Section 64 of the Practice Act provides among other things that if the defendant desires trial by jury, he shall make such demand in writing* at the time of filing* his appearance, otherwise he shall be deemed to have waived a jury. While Buie 1 does not in express terms refer to Buie 26, it must be held to be embraced therein inasmuch as Buie 26 outlines the procedure and trial practice to be followed where judgments by confession are entered and subsequently opened up. Notwithstanding the original judgment was taken prior to the effective date of the Civil Practice Act, still the proceedings to open up that judgment were had thereafter and its provisions as to pleading was followed by the defendant. Rule 1 and Rule 26 must be read and construed together and when so read it is apparent that the trial court did not err in denying appellant’s demand for a jury trial first made on January 13,1936.

Finding no error in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.


text:
    Jefferson Trust and Savings Bank of Peoria, Appellee, v. W. Heller and Son, Inc., Appellant.
    Gen. No. 9,238.

      Opinion filed August 16, 1938.
    Cassidy & Knoblock, of Peoria, and Alvin D. Blieden, for appellant; John E. Cassidy and Alvin D. Blieden, of counsel.
    Theodore C. Baer, Shelton F. McGrath, and Bartley & Younge, all of Peoria, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On December 23, 1933, the circuit court of Peoria county rendered a judgment by confession in favor of the Jefferson Trust and Savings Bank and against W. Pleller & Son, a corporation, for $8,583.30. Subsequently, on motion of the defendant, this judgment was opened up and leave granted the defendant to plead. On October 9, 1934 an unverified plea of tender was filed, which was stricken on motion of the plaintiff. On November 10, 1934 a second plea of tender supported by affidavit was filed. Nothing further seems to have been done until January 13, 1937, at which time a demurrer to the plea of tender and a motion to strike the affidavit in support thereof were filed, which motion was, on the same day, allowed, the plea stricken and leave granted defendant to file an amended plea by the following day. This was done. On January 15, 1937 defendant filed its motion to strike the affidavit supporting’ said amended plea. On January 25, 1937 this motion was sustained and leave was granted defendant to file, on or before January 28, 1937, an additional plea and an amended affidavit. On that day an additional plea and affidavit were filed. On January 29, 1937 the plaintiff filed a demurrer to the plea filed January 14, 1937 and to the additional plea filed January 28, 1937 and on the same day filed its motion to strike the affidavit of merits attached to the original plea. On February 5, 1937 the motion to strike the affidavit of merits was sustained. On February 20, 1937 defendant filed, by leave of court, four additional amended pleas, to the second, third and fourth of which the court, on April 20, 1937, sustained plaintiff’s general demurrer and struck, on motion of the plaintiff, the affidavit of merits to all four additional pleas. Upon this being done, plaintiff moved the court to enter an order confirming the original judgment. On April 21, 1937 defendant filed its motion for leave to file amended affidavits to its second, third and fourth additional amended pleas and with its motion tendered the affidavits of Rufus Heller, vice president of the defendant company. The court denied this motion and defendant elected to abide by its second, third and fourth additional amended pleas, whereupon the court sustained plaintiff’s motion of April 20, 1937 and vacated the order opening up the judgment and staying proceedings thereunder, and ordered that the original judgment entered on December 23,1933 in the sum of $8,583 remain in full force and effect. To review this record, defendant has prosecuted this appeal.

The fourth additional amended plea as appears from the abstract is as follows, viz: “Defendant says that plaintiff ought not to have its aforesaid action against it because the defendant says that it, the defendant, is an Illinois corporation, incorporated April 2, 1927, with its principal place of business in the City of Peoria, Illinois; that it is engaged in the scrap iron business and holds fee-simple title to real estate in this city of the approximate value of $80,000.00 which is used in the conduct of its business and which may be described as follows: Fifty (50) feet of even width by full depth off of southwest side of Lot Three (3) and all of Lots Four (4), Five (5) and Six (6) all in Block Seventy-four (74) in Ballanees Addition to the City of Peoria, County of Peoria and State of Illinois. And it is averred that before its incorporation said business of the defendant was conducted by a certain partnership and that on August 30, 1926, the said partnership executed a certain mortgage trust deed recorded in book 250, page 252, in the office of the Recorder of Deeds of Peoria County to the State Trust & Savings Bank of Peoria, as collateral security for a certain promissory note of even date in the principal sum of $15,000.00 and by said instrument created a first lien upon the said described real estate of the defendant, the title to which real estate was then in the members of said partnership and defendant avers that said partners received no consideration for said note and trust deed but that said note and trust deed was given exclusively to serve as collateral to any and all advances of cash to be made thereafter by the State Trust & Savings Bank to the partnership and it is averred that at the time defendant acquired said real estate and ever since, it has been encumbered with said lien created by the mortgage trust deed aforesaid.

“Defendant avers that in February, 1931, the State Trust & Savings Bank ceased doing business and that then the sole indebtedness of defendant which was assumed as a result of the sole partnership indebtedness was in the sum of $8,000.00 and defendant avers that in February, 1931, there was organized a State Bank known as the Jefferson Trust & Savings Bank, plaintiff herein, and that said bank became possessed of and acquired the assets and deposit liabilities of the State Trust & Savings Bank of Peoria and that said bank became possessed of the aforesaid mortgage trust deed and the obligation of the plaintiff in the sum of $8,000.00 and the earned interest thereof, which was the entire indebtedness of defendant or the members of said partnership to the State Trust & Savings Bank and the Jefferson Trust & Savings Bank.

“Defendant avers that from time to time thereafter the said indebtedness of $8,000.00 was renewed by defendant and evidenced by a certain promissory note in the principal sum of $8,000.00 and that the promissory note sued upon by the plaintiff herein is the note of the defendant evidencing said indebtedness.

“Defendant avers that at the time the aforesaid mortgage trust deed was executed by the members of said partnership who conducted said business that it was then agreed between the State Trust & Savings Bank and the members of said partnership that whenever the said partnership stood ready, able and willing to pay its full indebtedness to the hank that said bank would, upon request, stand ready, willing and able to return the said mortgage trust deed and release the lien upon said real estate created thereby.

“Defendant avers that the promissory note sued upon herein by the plaintiff is a part of the original agreement entered into between the State Trust & Savings Bank and the members of the partnership and that the part of said agreement to be performed by the State Trust & Savings Bank was assumed by the Jefferson Trust & Savings Bank, plaintiff herein, at the time plaintiff acquired and became possessed of the promissory note of the plaintiff and the mortgage trust deed aforesaid, and the part of the agreement to be performed by the partnership was assumed by the defendant herein. And it is averred that the promissory note sued upon herein by the plaintiff in the principal sum of $8,000.00 evidences said agreement, originally made between the State Trust & Savings Bank and the members of said partnership, in that said promissory note has, to wit, stamped on the face of said note or, to wit, written across said note the word ‘collateral,’ which defendant avers has reference to the said mortgage trust deed and the agreement originally made by the said partnership which created a lien upon the real estate, the title to which is in the defendant and it is averred that said mortgage trust deed referred to has a written provision contained therein in the following words and figures: ‘Provided, Always, that if the said party shall pay the said indebtedness and shall fully keep and perform all the covenants and agreements hereinbefore expressed, then this indenture shall be released, at the cost of said first party. ’

“Defendant avers that on December 21st, 1933, its entire indebtedness to the plaintiff was on account of its promissory note herein in the principal sum of $8,000.00, and accrued interest of $80.00, and that on said date there was no other indebtedness of the aforesaid partnership or of the defendant to the plaintiff on any account.

“It is averred that on said date, December 21st, 1933, the defendant stood ready, able and willing to pay the plaintiff the sum of $8,080.00, and did on said date, at the regular place of business of the plaintiff, tender the sum of $8,080.00 in good and lawful money of the United States to Milton Newman, president of the plaintiff, Jefferson Trust & Savings Bank, and also offered to pay the costs for the release of said trust deed, and then and there asked the plaintiff to stand ready, able and willing to return the said instrument, to wit, mortgage trust deed, and release the lien upon defendant’s property referred to herein, in accordance with the agreement aforesaid, bnt defendant avers that plaintiff then and there, Jefferson Trust & Savings Bank, refused to stand ready and willing, although able, to return the mortgage trust deed to defendant and release the lien created thereby, and it is averred that defendant at all times since has stood ready, able and willing to pay the plaintiff the said sum, and has tendered the said sum of $8,080.00 to the plaintiff, and now brings into court the said sum and tenders it to the plaintiff, and offers to pay the costs for the release of said trust deed. However, it is averred that at all times since December 21st, 1933, plaintiff has refused to perform the obligation on its part to be performed on account of the agreement aforesaid, in that the plaintiff has refused to stand ready and willing, although able, to return the mortgage trust deed aforesaid and release the lien upon defendant’s property created thereby, and this the defendant is ready to verify.

“Wherefore, defendant prays judgment that plaintiff ought not to have its aforesaid action to recover any greater damage than the sum of $8,080.00. ’ ’

The affidavit thereto which defendant sought leave to file is as follows, viz: “State of Illinois, County of Peoria, ss. Rufus Heller makes oath and says that he is vice president of W. Heller & Son, Inc., defendant in the above-entitled cause, and duly authorized to make this affidavit ; that he verily believes that it has a good defense to this suit upon the merits to a part of the plaintiff’s demand, which said part amounts to $583.30 allowed as interest, costs and attorneys’ fees in the confessed judgment, and the interest on the confessed judgment from the date of its entry, according to the best of his judgment and belief, and that the nature of such defense is as follows: Defendant is an Illinois corporation, incorporated April 2, 1927, with its principa! place of business in the City of Peoria, Illinois, and holds fee simple title to certain real estate. Before its incorporation defendant was a partnership. Defendant’s business was conducted by a certain partnership, which partnership, on August 30, 1926, executed a certain mortgage trust deed to the State Trust and Savings Bank of Peoria as collateral security for a certain promissory note for $15,000.00, thereby creating a first lien on the partnership’s property. The said partners received no consideration for said note and trust deed, but the same were given to serve as collateral to any and all future advances that might be made thereafter by the said State Trust & Savings Bank to the partnership. In February, 1931, the State Bank ceased doing business. At that time the sole partnership indebtedness was $8,000.00, which sole indebtedness was secured by the trust deed. In February, 1931, the Jefferson Trust & Savings Bank, plaintiff herein, was organized and acquired the assets and liabilities of the State Trust & Savings Bank, among which was the said indebtedness of $8,000.00 represented by a note and the $15,000.00 note and trust deed executed as aforesaid to the State Trust & Savings Bank. From time to time said indebtedness of $8,000.00 was renewed and is evidenced by the said promissory note upon which plaintiff is here suing. At the time the mortgage trust deed and note were executed it was agreed between the partnership and the State Trust & Savings Bank that whenever said partnership stood ready, able and willing to pay its full indebtedness to the bank, said bank would, upon request, stand ready, able and willing to return the said mortgage trust deed and release the lien upon said real estate created thereby. The promissory note sued upon herein by the plaintiff is a part of the original agreement entered into between the State Trust & Savings Bank and members of the partnership, and that part of the agreement to be performed by the State Trust & Savings Bank is assumed by the Jefferson Trust & Savings Bank, plaintiff herein. At the time plaintiff acquired the promissory note of defendant and the mortgage trust deed, the part of the agreement to be performed by the partnership and its rights was assumed by the defendant. The said note of $8,000.00 sued hereupon by plaintiff evidences the said agreement in that it has stamped on the face of said note the word ‘collateral,’ which refers to the mortgage trust deed and the agreement originally made by the partnership. The said mortgage trust deed provides that if defendant shall pay the indebtedness, and keep other covenants, the trust deed shall be released at the cost of defendant. On December 21, 1933, the entire indebtedness of the plaintiff on the note sued herein upon was $8,080.00. Said note of $8,000.00 was the only indebtedness secured by the said trust deed executed by the partnership August 30, 1926. On that date defendant tendered to Milton Newman, president of the Jefferson Trust & Savings Bank, plaintiff herein, the sum of $8,080.00, which was all that was due on said note and offered to pay the costs for release of the trust deed, and then and there asked the plaintiff to stand ready, able and willing to return the said mortgage trust deed and release the lien on defendant’s property in accordance with the agreement aforesaid, but plaintiff refused to stand ready and willing, although able to return the mortgage trust deed and release the lien created thereby. Plaintiff has brought into court before and now here brings into court the said sum of $8,080.00 and tenders it to plaintiff and offers to pay the costs for release of said trust deed, and asks the plaintiff to stand ready, able and willing to return said trust deed and release the lien created thereby. Rufus A. Heller. Subscribed and sworn to before me this 21st day of April, 1937. Cecelia Dwyer, Notary Public.”

The affidavit of merit attached to the second, third and fourth additional amended pleas was executed by Rufus Heller, and recited that he was vice president of appellant and stated that he had read the several additional amended pleas and that they were true in fact and in substance. The several affidavits of merit which appellant asked leave to file after the demurrers to the several additional amended pleas had been sustained were substantially identical and the allegations of the second and third additional amended pleas were similar to and substantially the same as those found in the fourth additional amended plea hereinbefore set forth.

The questions raised by this appeal are the sufficiency of the allegations contained-in the second, third and fourth additional amended pleas to constitute a defense and whether the trial court abused its discretion in refusing appellant leave to file amended affidavits of merit in support of its additional amended pleas.

Counsel for appellee contend that the pleas demurred to alleged a conditional tender and a verbal promise which varies the terms of the note sued on, that the affidavits of merit did not state that affiant believed the defendant had a good defense as required by section 55 of the Practice Act of 1907 and that the trial court therefore did not err in refusing leave to file amended affidavits of merit as they merely repeated facts which the trial court held insufficient when it sustained demurrers to the several additional amended pleas. Counsel for appellant, on the other hand, insist that the allegations of the several pleas disclose that appellee held the promissory note sued on; that it held also, hut only as security for its payment and for the payment of no other indebtedness, a trust deed; that when the trust deed was executed it was agreed between the maker of the note sued on and appellee’s predecessor in title, that it was to be held as security only for appellant’s indebtedness evidenced by the note sued on and that upon the payment of that indebtedness appellee would, upon request, release the trust deed of record and return the collateral and that therefore the obligation of appellant to pay and of appellee to return the collateral and release the trust deed of record were mutual and concurrent parts of a bilateral contract and the trial court erred in holding these several additional amended pleas insufficient.

It is the law, as contended by appellee, that a tender to be good must be for a specific amount and offered without annexing any terms or conditions. Dunbar v. Springer, 256 Ill. 53. But it is equally well settled that this applies only where one party owes a definite amount to another and the party to whom it is due owes no obligation to his debtor because a tender may always be coupled with such conditions as the party making it has the right to impose, such as that he shall receive what the payment or a tender legally made would entitle him to, so where there is a promise to pay by one party and a concurrent promise upon the part of the other to release a trust deed at the time of payment, the tender of performance by one party conditioned upon performance by the other is sufficient because such promises are mutual and concurrent parts of a bilateral contract. Rohn v. Heidrich, 174 Ill. App. 423. It was there stated that a tender was not impaired by a demand for a release of a trust deed, the court holding that a tender may be accompanied with such conditions as were, by the terms, of the contract, made conditions either concurrent or precedent to be performed by the party to whom the tender is made. See also Clark v. Weis, 87 Ill. 438; Osgood v. Skinner, 211 Ill. 229; Macy v. Brown, 326 Ill. 556.

But, argue counsel for appellee, the note sued on contains an unequivocal promise by appellant to pay appellee a definite amount and the effect of the alleged verbal agreement is to vary and contradict its express and explicit terms so that appellant’s obligation as so changed by the verbal agreement would read: “On demand and return of collateral security I promise to pay $8,000.00.” In Scholbe v. Schuchardt, 292 Ill. 529, it appeared that the note sued on contained this marginal memorandum written on its face just below the signature of the maker: “this note is given to secure 5,000 shares of Regina Stock” and it was held that in the interpretation of the note the marginal words must be fully considered as a part of the instrument and when so considered it is apparent that the meaning of the contract was uncertain and that to ascertain its meaning it was proper to admit evidence of the parol agreement of the parties and that by the introduction of such evidence the written contract was not varied but explained and set forth in full so that its exact meaning might be understood. In the instant case the note sued on has stamped upon its face the. words “collateral” and the averment of the pleas is that this has reference to the trust deed which secured its payment. The pleas also aver that this trust deed and the note of which the one sued on is a renewal were executed at the same time as a part of the same transaction and that the trust deed contained a provision to the effect that if appellant should pay the indebtedness secured thereby that then said trust deed should be released of record. The authorities are all to the effect that where contemporaneous agreements are. entered into pertaining to the same subject matter, they are to be construed together and this principle applies to notes as well as to any other contract. Heldman v. Gunnell, 201 Ill. App. 172 and cases therein cited; Edward Thompson Co. v. Hunt, 218 Ill. App. 616.

If the ruling of the trial court was correct in sustaining the demurrers to the additional amended pleas, it would have committed no error in refusing appellant leave to file the amended affidavits of merit in support of these pleas inasmuch as they set forth the same facts which were alleged in the additional amended pleas. We are of the opinion, however, that the allegations of the additional amended pleas are sufficient, when tested by appellee’s demurrer thereto, and that the trial court therefore erred in sustaining the demurrer. The judgment of the circuit court entered on April 21, 1937, which vacated the order of September 25, 1934, is therefore reversed and this cause is remanded with directions to overrule the demurrer to appellee’s second, third and fourth additional amended pleas and to grant appellant leave to file its several amended affidavits of merit.

Reversed and remanded.


text:
    Ethyle Jones et al., Appellants, v. Edwin C. Pebler et al., Appellees.
    Gen. No. 9,306.
    Opinion filed August 16, 1938.
    Guy C. Guerins, of Melrose Park, and Leslie J. Smith, Jr., of Chicago, for appellants; Guy C. Guerins, of counsel.
    Hadley & Weaver, of Wheaton, for appellees ; Harry G. Weaver, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

The determination of the question presented for decision here requires a construction of sec. 20a of ch. 95½, Ill. Rev. Stat. 1937 [§ 23; Jones Ill. Stats. Ann. 85.023],

The amended complaint was filed in the circuit court of DuPage county on October 4,1937 and among other things charged that Edwin C. Pebler was in possession and control of an automobile which he was driving for and on behalf of John H. Cownie and J. M. Schütz, doing business as J. H. Cownie Company, and for and on behalf of J. H. Cownie Company, a corporation, as their agent, servant or employee; that said Pebler was proceeding in a westerly direction on Roosevelt road in Grlen Ellyn; that the plaintiffs were riding in an automobile owned by Ethyle Jones which was being driven by Frederick W. Jones'in an easterly direction at the same time and at the same place, that due to the negligence or wilful and wanton misconduct of the defendants, as set forth in the amended complaint, the plaintiffs were injured and sustained damages. Summons was issued to the sheriff of Sangamon county and service in accordance with the provisions of said sec. 20a, ch. 95½, Ill. Rev. Stat. 1937 [§ 23; Jones Ill. Stats. Ann. 85.023] was had upon the nonresident defendants, John H. Cownie and J. M. Schütz, doing business as J. H. Cownie Company, and J. H. Cownie Company, a corporation, by filing true copies of the summons with Edward J. Hughes, Secretary of State of the State of Illinois and complying with the provisions of said section of the statute. The trial court, upon motion of these defendants, quashed the summons and service as to them and dismissed the amended complaint and the plaintiffs prosecute this appeal.

It is the contention of appellants that a nonresident corporation is, or the members of a partnership are amenable to the provisions of this section of the Motor Vehicle Act if such corporation is or such individuals are operating an automobile upon the highways of this State by a servant, agent or employee. Appellees insist, and the trial court held that the act applies only to individuals who are in the actual possession of and driving an automobile over the highways of the State, and that a nonresident employer is not amenable to the provisions of the statute when the automobile is in the possession and control of and being driven by an agent, servant or employee of such nonresident employer. Counsel for appellees also insist that the record does not disclose that notice of such service upon the Secretary of State was had or that a copy of the process so served was sent by registered mail by the plaintiffs to the defendants at the last known residence of the defendants, nor does the record show that there is appended to the summons plaintiffs ’ affidavit of compliance.

Sec. 20a, ch. 95½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.023] provides in part as follows: “The use and operation by a nonresident of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment by such non-resident of the Secretary of State, to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally. Service of such process shall be made by serving a copy upon the Secretary of State, or by filing such copy in his office, together with a bond conditioned on the failure of the plaintiff to prevail in the action in the sum of five hundred dollars with sureties to be approved by the Secretary of State, for the purpose of reimbursing the defendant for the expense necessarily incurred by him in coming to this State to defend the action, and a fee of two dollars, and such service shall be sufficient service upon the said non-resident; if notice of such service and a copy of the process are, within ten days thereafter, sent by registered mail by the pliantiff to the defendant, at the last known address of the said defendant, and the plaintiff’s affidavit of compliance herewith is appended to the summons.”

In O’Tier v. Sell, 252 N. Y. 400, 169 N. E. 624, the plaintiff broug’ht suit in New York against Walter Sell and others to recover damages sustained by reason of injuries received in an automobile collision with an automobile owned by Sell and operated by Karl R. Trevor. Sell resided in Pennsylvania and the New York statute at that time provided that in an action against a nonresident growing out of any accident or collision in which the nonresident may be involved while operating a motor vehicle on a public highway of that State, the summons may be served on the Secretary of State. Sell moved the trial court to set aside the service on the ground that he was not operating the motor vehicle at the time of the collision. It appeared from the affidavits filed in support of said motion that Trevor and Sell were both employees of the Franklin Manufacturing Company of Syracuse, New York, that Sell drove his car to Syracuse to attend a convention of employees of the Franklin Company, that while there he was having some car trouble and drove it to the factory of the company and left it with Trevor to be repaired, who, the following day, was driving it, with the consent of Sell, for the purpose of finding the trouble. The collision occurred while Trevor was so driving the car and Sell was not present at the time. Under the New York statute, Sell was liable to the plaintiff for the negligence of Trevor if Trevor, at the time of the collision was operating the car with Sell’s permission. In its opinion, the court assumed Trevor was so operating Sell’s car but held that the word “operate” as used in the New York highway law signified a personal act in working the mechanism of the car and in the course of its opinion, the court quoted from Witherstine v. Employers Liability Assur. Corp., 235 N. Y. 168, where it was said: “The driver operates the car for the owner but the owner does not operate the car unless he drives it himself. If the meaning were extended to include an owner acting either by himself or by agents or employees, the provisions of the Highway Law would be replete with repetitious jargon. ’ ’

Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N. W. 557 was an action brought to recover damages for injuries received by the plaintiff as a result of a collision on a public highway in Alger county, Michigan, between his car and a car belonging to Chas. H. Wilt, who was employed by the defendant to .travel in Michigan and make needed repairs and adjustments on tractors manufactured by defendant. It appeared that Wilt, at the time of the accident, was under orders of the defendant and using his own car but receiving from the company seven cents per mile travelled for the use thereof as expense money. The Michigan statute at that time provided:' “From and after the effective date of this act, the operation by a non-resident of a motor vehicle upon a public highway of this state shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney, upon whom may be served the summons in any action against him, growing out of any accident or collision in which such nonresident may be involved while operating a motor vehicle on such highway. Such operation shall be deemed a signification of his agreement that any such summons against him which is so served shall have the same legal force and validity as if served on him personally within this state. ’ ’

In holding that the defendant was not an operator of the Wilt car within the meaning of this statute, the court said that the statute was in derogation of common right and must be strictly construed and cannot be extended to include persons not coming within its terms; that the words “operation” and “operating” may mean many things; that other motor statutes were of no assistance because they employ the words as meaning acts of the owner of the driver, according to context; that nearly all the States have adopted acts for substituted service on nonresident motorists and that they differ, but the Michigan act is identical with the New York law and the court therefore assumed it was taken therefrom. The opinion then cited O’Tier v. Sell, supra, and a number of other New York cases, among them Wallace v. Smith, 238 App. Div. 599 (265 N. Y. Supp. 253) where it was held that a foreign corporation, not the owner of the car, was not subject to the statutory service where the car was driven by the agent who owned the car and quoted from that opinion as follows: “The law permitting service by the means suggested may be necessary in certain cases. . . . If it is to be extended so that it will cover a case of this character, it may be subject to great abuse! A person or corporation which is neither the owner nor operator of a car may be called to some distant state to defend a personal injury action on the allegation that a person operating a car in that state was doing so as the agent for the person or corporation. . . . The statute was never intended for any such purpose.” After citing Josephson v. Siegel, 110 N. J. L. 374, 165 Atl. 869; Morrow v. Asher, 55 F. (2d) 365 and Day v. Bush, 18 La. App. 682, 139 So. 42, the court said: “It is desirable that statutes for substituted service on motorists shall have uniformity of construction, as far as their language will permit, that people may cross state lines with knowledge of their liabilities and rights. The construction by other courts, in cases similar in fact or principle, is in accord with the language and purpose of our act. The substituted service on defendant was not authorized.”

In Flynn v. Kramer, 271 Mich. 500, 261 N. W. 77, the court adhered to and reaffirmed the Brown case, supra, and held that a nonresident individual owner of an automobile who was not driving, nor a passenger, in his car which was involved in an accident, but a passenger in another car following at some distance was not an operator within the meaning of the Michigan statute.

In Morrow v. Asher, 55 F. (2d) 365, the court construed a Texas statute with reference to service on nonresidents who operate motor vehicles on the highways of that State. The Texas statute is substantially the same as the New York, Michigan and Illinois statute and the court in its opinion cited cases from California, Iowa, New York and Texas and concluded: “Differ as we may about the scope of the word ‘operate,’ there is highly respectable authority, both in dictionary and in court decisions, to the effect, as already shown, that operation means the actual handling of the machinery. ... It follows that the motion to quash the service must be sustained.”

Counsel for appellants concede that these decisions are adverse to their contentions but argue that the courts which came to these conclusions strictly construed the provisions of these statutes, while counsel insist that our statute should be liberally construed, that it was passed as a matter of public policy and convenience for the benefit of the residents of this State and to construe it in a narrow or restricted sense would be unjust to the citizens of this State. In the course of a very interesting and comprehensive article, on nonresident motorists, appearing in the January, 1934 issue of the Michigan Law Review (Yol. 32, No. 3) the author states that the class of nonresidents affected by the statutes in the 35 States which, at that time, authorized the commencement of a suit against a nonresident motorist by substituted service on a public official of the State where the cause of action arose is not uniform. That usually (among- them Illinois and Michigan) the statute fixed responsibility upon the owner. “If strict construction is applied,” continues the author at page 345, “liability under such statutes is confined to personal operation by the nonresident owner. Some statutes impose liability upon the owner for operation by his agent or servant (among them Connecticut, Delaware, Iowa, Indiana, Maine, Mass.); others apply to operation by the nonresident operator, owners or chauffeur; and still another class fixes liability upon the owner or anyone operating with the owner’s permission. There should be no question about the liability of the owner for the act of another person driving by his authority or permission. Jurisdiction of suits against nonresident motorists is grounded upon the policy of securing compensation for injuries to local residents. This policy is equally applicable whether the driving is done by the owner, or the agent, chauffeur, servant or a third person with consent. The potential harm is as great whether the nonresident owner himself or another be driving his car, and the necessity for resorting to substituted service is just as pressing. There is, however, a tendency to construe the word ‘operate’ in the statutes to apply to the personal acts of the owner, and not to acts of servants or employees where the statute does not plainly require this application. ... A Maryland statute goes further than most statutes in that it specifically confers authority to serve not only nonresident individuals but also firms and corporations. There is every reason for jurisdiction over nonresident firms and foreign corporations which exist relative to the nonresident individual, and it seems that jurisdiction over firms and corporations is properly maintained. ’ ’

Under onr statute the use and operation of an automobile over the highways of the State serves automatically to appoint the Secretary of State to receive service of process and said use or operation is stated to be a consent that such substituted service shall have the same force and validity as personal service. As stated in Fitzgerald v. First Nat. Bank, 272 Ill. App. 570, at page 579, constructive service upon a nonresident is contrary to the common law or, as said in Brown v. Cleveland Tractor Co., supra, such service is in derogation of common right. It is purely statutory and the provisions of the statute should be construed very strictly and should not be extended by implication to include persons not clearly coming within its terms. If the legislature of this State had intended the words “Use and operation” or the words “use or operation” to include the nonresident owner, who was not present and who was not personally engaged in the use and operation of his car at the time when such use or operation resulted in damage or loss to the person or property of another, it could easily have used apt language to indicate its purpose. This statute has been the law of this State since 1929. It has never been amended. It is substantially the same as the original New York Act and the Michigan Act both adopted by those States previous to the time our statute was adopted. It is significant that after the decision of the highest courts of New York and Michigan construing their statutes in the O’Tier and Brown cases, the legislatures of those States amended their statutes but the legislature of Illinois did not see fit to do so. Under the authorities and applying settled rules of construction to the provisions of this statute we are clearly of the opinion that liability thereunder is confined to personal operation of a motor vehicle by a nonresident owner and the action of the trial court in so holding and in quashing the summons and service and in dismissing the amended complaint was correct.

We might add that the record here does not disclose any affidavit of compliance appended to the summons as required by the statute. For the reasons herein stated, the judgment appealed from will be affirmed.

Judgment affirmed.