author: Mr. Presiding Justice Sullivan Mr. Presiding Justice Sullivan

text:
    Fruehauf Trailer Company, Appellee, v. Albert M. Lydick, Appellant.
    Gen. No. 43,129.

      Heard in the second division of this court for the first district at the June term, 1944.
    Opinion filed December 19, 1944.
    Rehearing opinion filed February 13, 1945. Released for publication March 5, 1945.
    Seymour M. Lewis, of Chicago, for appellant; Theodore Rubovits and Julius M. Lorenz, both of Chicago, of counsel.
    M. M. Loman, of Chicago, for appellee; Albert E. Jenner, Jr., counsel on rehearing.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Fruehauf Trailer Company, to recover a balance of $336.98 claimed to be due from defendant, Albert M. Lydick, for repairs made to one of his trailers. Defendant filed a counterclaim for damages alleged to have resulted from plaintiff’s wrongful refusal to deliver to him a bill of sale for another and different trailer which he had purchased from the Fruehauf Trailer Company and fully paid for. The case was tried before the court without a jury and judgment for $211 was entered in favor of plaintiff on its statement of claim and judgment was entered against defendant on his counterclaim. Defendant appeals from both judgments.

Although plaintiff’s statement of claim averred that the balance due it for repairs to one of defendant’s trailers was $336.98, at the opening of the trial its counsel offered to prove that the balance due for such repairs was $211, which offer defendant accepted.

Defendant’s amended counterclaim alleged substantially that on February 15, 1941 he purchased a Fruehauf trailer from plaintiff on a conditional sale contract; that he completed the payments thereon on September 24, 1942; that “since September 24, 1942, the defendant has requested from the plaintiff a bill of sale or other evidence of title to the said trailer but the plaintiff has refused and still refuses to give the defendant a bill of sale to the said trailer and has based its refusal on the unwarranted grounds that the defendant was indebted to the plaintiff on the claim herein sued upon”; that “because of the plaintiff’s refusal to give the defendant the bill of sale or other evidence of title, the defendant has been unable to obtain an Illinois license for the said trailer and has, therefore, been unable to use the said trailer”; that “there is a great demand for the use of trailers such as defendant’s during the present emergent conditions and has been since the start of the war and if the defendant had had the use of the said trailer since October, 1942, he would have earned from the use of the said trailer approximately $10.00 per day”; and that “plaintiff has thereby deprived the defendant of the use of the said trailer and prevented him from earning a sum approximating $2,100.00 and this action upon the part of the plaintiff has been wilful and malicious and unwarranted.” The counterclaim concluded with a prayer for the allowance "to defendant of $2,100 damages against plaintiff. Plaintiff’s answer to the amended counterclaim consisted merely of a general denial of the facts alleged therein.

The conditional sale contract contained the following provision:

“Title to said goods is now and shall remain in Seller until the sum aforesaid, with interest, shall be fully paid. When the total purchase price herein provided for has been paid and all conditions hereunder have been satisfied by the buyer, it is agreed that the title papers to said goods, together with proper evidence of satisfaction of this contract, shall be delivered to the buyer.”

Section 17 of the Illinois Motor Vehicle Act (par. 18, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.018]) provides in part as follows:

“Upon the sale of a motor vehicle by a manufacturer or dealer, he shall thereupon give to the purchaser a bill of sale setting forth the name and address of the purchaser, the date of purchase, together with a description of such motor vehicle . . . . ”

Defendant made his final payment on the trailer on September 24,1942 and at that time he did not receive a bill of sale for said trailer, although he demanded same. His persistent and repeated demands for a bill of sale over a period of several months were evaded and he finally received a letter from plaintiff, dated January 22, 1943, which contained the following statement :

“You asked that if we are unable to find this title to please send you a notarized bill of sale, covering this unit. However, in checking my records, I find that you are indebted to us for approximately $350.00 which has been turned over to the United Mercantile Agency, in Louisville, Ky. for collection and until this account is settled in full, we do not see our way clear to issue a title to this trailer.
“If you will take care of this item with the United Mercantile Agency and have them advise us that the account has been settled, we will then furnish you with a bill of sale.”

Prior to the time the trailer in question was completely paid for it had not been operated in Illinois but when the final payment was made thereon defendant apprised plaintiff that he wanted to use it in this state. Plaintiff, being engaged in the manufacture and sale of trailers and having a place of business in this state, knew or should have known that defendant could not operate his trailer in Illinois without procuring a license therefor and that before he could secure a license he first had to get a certificate of title, which the secretary of state would not issue to him without a bill of sale showing his title to and ownership of the trailer. There is evidence in the record that defendant and his wife attempted on numerous occasions to secure a certificate of title and license without a bill of sale but they were unsuccessful in such attempts because the secretary of state was not authorized to receive an application for a certificate of title unless the application included “a bill of sale or statement of transfer by the seller.” (Sec. 4(b), par. 77, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.078, subpar. (b)]).

It will be noted from the foregoing excerpt from plaintiff’s letter to defendant of January 22, 1943 that the only reason advanced therein for its refusal to issue a bill of sale to defendant was the latter’s failure to pay plaintiff an indebtedness of $350. It appears that the indebtednéss referred to was for repairs made to a different trailer and, while defendant admitted that he owed plaintiff for work done on the other trailer, he insisted that the amount claimed for such repairs was exorbitant. That such claim was exorbitant is indicated by plaintiff’s willingness upon the trial to accept $211 for the repairs, although in its letter of January 22, 1943, it claimed $350 therefor and in its statement of claim $336.98. Defendant was willing and anxious at all times to pay what he actually owed for the repairs. In any event the transaction involving plaintiff’s claim for repairs was entirely unrelated to defendant’s0right to a bill of sale for the trailer which he had fully paid for. Plaintiff’s withholding of the bill of sale until defendant paid the admittedly exorbitant charge for repairs to another trailer can only be regarded as a sharp and tricky practice adopted by it to .compel defendant to pay an unfair bill.

That there was no justification for its refusal to give defendant a bill of sale for the trailer must be conceded by plaintiff, since it offered no valid explanation or reason for such refusal in the trial court and.it offers none here. There can be no question but. that by reason of its wrongful conduct in refusing to issue to defendant a bill of sale, “title papers” or “evidence of the satisfaction of the contract” plaintiff breached its contract and violated its statutory duty and thereby unlawfully deprived defendant of the use of his trailer. Neither can there be any question but that defendant is entitled to recover damages for the loss of the use of his trailer. This brings us to the proper measure of damages applicable to this case, which presents a sui generis situation as to damages due to war conditions.

Although the trial judge apparently recognized that the enforced idleness of defendant’s trailer resulted from plaintiff’s wrongful conduct in deliberately refusing to issue a bill of sale therefor, he held that defendant was not entitled to recover any damages and stated his reasons for so holding as follows:

“It seems to me that the damages claimed are too remote or indirect. If defendant was entitled to a Bill of Sale or other title papers after payment of the contract had been made in full and such Bill of Sale or other title papers, were refused, then it seems to me the measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract. The damages claimed are not the natural and probable result of such refusal.” The trial judge apparently assumed that defendant’s only recourse was under the provisions of the Uniform Motor Vehicle Anti-Theft Act, hereinafter discussed, which, as will be seen, did not apply.

In its endeavor to sustain the refusal of the trial court to find the issues in favor of defendant on his amended counterclaim, plaintiff contends that “defendant’s failure to obtain an Illinois title and license resulted from his own neglect, not from plaintiff’s refusal to give him a bill of sale,” and cites in support of -such contention the following portion of section 4(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 77, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. 85.078, subpar. (b)]):

“. . . Where application is made for a certificate of title for a new or used motor vehicle not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of ownership in the purchaser or transferee, the Secretary of State shall not issue a certificate of title therefor, but shall, upon payment to him by said applicant of the sum of twenty dollars ($20.00) as a fee for title investigation, cause a thorough investigation to be made of the source and antecedents of such title and the right of such applicant to a certificate of title.
“If, as a result of any investigation of title herein authorized, the Secretary of State is satisfied as to the validity of the title and ownership of the applicant, he shall issue a certificate of title in accordance with the terms of this Act.”

This portion of section 4(b) of the statute has no application to the situation presented here. Reference is made therein to motor vehicles “not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of qjvnership. ” The sale of the trailer to defendant was made under one of the “above enumerated conditions” establishing a prima facie case of ownership in him but he was unable to present prima facie evidence of his ownership solely because of plaintiff’s unwarranted and wrongful refusal to give him the bill of sale he was legally entitled to receive. Preceding the portion of section 4(b) quoted by plaintiff that section also contains the following provision: “Whenever application is made for a certificate of title for a motor vehicle for which a certificate of title has not previously been issued in this State, such application shall include a bill of sale or statement of transfer by the seller. . . .” Because of defendant’s inability to include a bill of sale in his application for certificate of title the secretary of state was neither authorized nor required under section 4 (b) of the Motor Vehicle Anti-Theft Act to accept an application from him for a certificate of title or to investigate his title to the trailer. Our attention is also called to sections 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 82, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.083, subpars. (a), (b)]), which provide in part as follows: “If the Secretary of State shall determine that an applicant for a Certificate of Title to a motor vehicle is not entitled thereto, he may refuse to issue such certificate and to register such motor vehicle .... Any person denied a Certificate of Title . . . may, within ninety (90) days thereafter, file a petition in the Circuit Court . . . for a hearing or review, and such court . . . shall thereupon hear such cause and enter such order as may be proper. ’ ’ The foregoing provision for review by the circuit court of the action of the secretary of state in refusing to issue a certificate of title cannot apply here since, because of plaintiff’s wrongful conduct, defendant never could or did present a proper or valid application for a certificate of title upon which the secretary of state was authorized? or required to take any action.

Other than its reliance upon sections 4(b) and 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act, plaintiff makes no effort in its brief to support the proposition advanced by the trial court that “the measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract.” The trial court did not point out and neither does plaintiff in its brief any prompt and certain remedy available to defendant to compel plaintiff to give him a bill of sale.

It is contended that “the damages sought to be recovered by defendant were speculative and remote, for which no recovery could be had.” It is sufficient answer to this contention to state that plaintiff knew that defendant was in the trucking business, that there was an unusual demand for the use of trailers of this kind and that defendant would suffer loss if he was unable to use the trailer because of its refusal to give him a bill of sale so that he could procure a certificate of title and a license. Mot only are the damages claimed by the defendant neither remote nor speculative but they are such as plaintiff must have known would result directly and as a natural and probable consequence of its refusal to issue the bill of sale.

Plaintiff contends that “defendant failed to mitigate the alleged damages and failed to exercise reasonable care and diligence to avoid loss and to minimize any resulting damages.” We are not unmindful of the rule that a party being damaged cannot stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. But defendant was helpless under the circumstances. He not only made every reasonable effort but every possible effort to prevail upon plaintiff to issue the bill of sale to him. It appears conclusively that defendant was powerless to do any more than he did do to prevent his damages from increasing as a result of plaintiff’s continued wrongful conduct. It was solely within the control of plaintiff to prevent any injurious consequences to defendant by giving him the bill of sale when he was entitled to it. It was also solely within its control to give him a bill of sale on any day thereafter up to the time of the trial and thus prevent his damages from continuing and increasing. It is stated in defendant’s brief and not denied that plaintiff still refuses to issue the bill of sale. Defendant was even precluded from selling the trailer and thereby mitigating the damages because he could not sell it without a certificate of title.

The wrongful conduct of plaintiff had its inception in its endeavor to intimidate and compel defendant to pay an unfair and exorbitant bill for repairs to another trailer by refusing to issue to him a bill of sale for the trailer involved in his counterclaim and, as already shown, such refusal and continued refusal utterly disregarded plaintiff’s contractual and statutory duty. Without fault or neglect on defendant’s part and solely by reason of the deliberate, wrongful and wilful conduct of plaintiff, Lydiek was deprived of the use of his trailer and we are impelled to hold that plaintiff should be required to pay such damages as defendant sustained as a result of the loss of the use of his trailer.

In our opinion the proper measure of damages for plaintiff’s wrongful conduct in depriving defendant of the use of his trailer is the reasonable use or rental value thereof (sec. 83 (c), p. 600, 25 C. J. S.). Defendant’s uncontradicted evidence shows clearly that the reasonable use or rental value of this twenty-four foot trailer was from $7 to $10 per day. Having shown the reasonable use or rental value of the trailer per day, it was also incumbent upon defendant to prove the actual number of days it could and would have been used in his business or could and would have been rented, if he had a license for it.

Defendant Albert M. Lydick testified that from the time he purchased the trailer in question until it was completely paid for and plaintiff refused to give him a bill of sale for it, he used it continuously seven days a week; that from December, 1941 to the time of the trial “there has been a big demand for trailers and tractors, being that the country is at'war, there has been a terrific demand because ODT had closed all building of new equipment, and even old equipment is pulled out of the junk yards and reconditioned in order to do hauling today. The equipment is very scarce ... I have not been able to license it and I have never been able to use it” since “the forepart of October, 1942”; and that from “the beginning of October, 1942 down to the present time,” requests or demands were made of me “for the use of a trailer for hauling or for entering into hauling contracts or for doing trucking and leasing . . . the demands come in there regularly, I have had as high as two a day, and there was not a week went by but what I would get a demand for the equipment. ’ ’

Earl Beaty, one of the three experts who testified as to the fair and .reasonable use or rental value of the trailer, also stated that “in December of ’41 the Government froze all sales on the selling of new equipment, tractors and trailers and due to that fact it created an unusual demand for the old equipment and due to the fact that there is considerable tonnage with new manufacturing, the operators earned considerably more money the following years, than previously”; and that there was a steady demand “from then until now. ’ ’

Eleanor Lydick after stating that she was the bookkeeper and general helper of her husband in his trucking business, testified in part on her direct examination as follows:

‘ ‘ Q. Are you familiar with the trailer that is in dispute here between Fruehauf and yourself? A. Tes, I am. Q. Do you know the trailer? A. Tes. Q. You have seen it? A. Yes. Q. Originally and continuously? A. Yes. Q. Since October 1942 and before? A. Yes. Q. Has that trailer been used? A. We used it for a period of time . . . and it amounts to seventy-five days, to be exact. Q. Seventy-five days? A. Yes sir. . . . Q. Mrs. Lydick, to your knowledge, do you know how many days this twenty-four foot van of Fruehauf that is in dispute here was not used by you or by Mr. Lydick in your business because of your inability to obtain a certificate of title and a license? A. I figured out 397 days. Q. 397 days? A. Yes. Q. When does that start? A. That starts on October 16th of 1942. Q. And terminates when? A. Terminates the end of January of this year [1944]. . . . Q. And does that exclude the 75 days that you have referred to? A. Yes, it does. Q. And so there is a net of 397 days? A. That is right.”

It also appeared that defendant used the trailer illegally without an Illinois license for the 75 days Mrs. Lydick referred to in her testimony; and that after defendant had rented another trailer for two or three weeks at $72 a week, he purchased same and used it in his business for a considerable period and then sold it at a profit.

The foregoing comprises all the evidence in the record concerning the constant demand for the use of trailers generally and for the use of the trailer in question. Not only was it shown by Lydick’s testimony that there was a persistent, steady demand for the use of his trailer but his wife testified that the trailer “was not used” in defendant’s trucking business for 397 days between October 16, 1942 and January 31, 1944, solely because he was unable “to obtain a certificate of title and a license.” Mrs. Lydick’s testimony made out a prima facie case that the trailer could and would have been used 397 days in her husband’s business if plaintiff had not wrongfully deprived him of its use by its unwarranted conduct in refusing to give him a bill of sale. Plaintiff offered no evidence to contradict her testimony and neither was it impeached in any manner.

As has been seen, at some unstated time during the period involved herein defendant purchased another trailer which he used in his business and later sold at a profit. Plaintiff contends that defendant is not entitled to damages for loss of the use of the trailer in question during the period,the newly purchased trailer was used in its place and stead. There is not the slightest merit in this contention. The mere fact that defendant made an advantageous purchase of another trailer instead of renting one to use in his business in place of the Pruehauf trailer cannot inure to plaintiff’s benefit. The fact still remains that defendant lost the use .of his trailer during said period, when it could have, been used or rented if he had a license for it. On the whole, plaintiff’s theory seems -to be that it could wrongfully prevent the use of defendant’s trailer indefinitely and until it had become worthless by refusing to issue the bill of sale to him and the defendant would still have no recourse against it for damages.

We hold that the evidence submitted by defendant meets the test of definiteness required by law to support an award of damages to him on his amended counterclaim for the loss of the use of his trailer for 397 days, which loss at the rate of $7 per day, amounts to $2,779. Said 397 days does not include the 75 days’ illegal use of the trailer by defendant without an Illinois license. Inasmuch as defendant’s ad damvmm was stated to be $2,100 in his amended counterclaim, that is the maximum amount of damages that may be allowed him on said counterclaim. Deducting $211, the amount of damages allowed1 plaintiff on its statement of claim, from the $2,100 which defendant is entitled to recover on Ms amended counterclaim, leaves a balance of $1,889, for wMck amount judgment should be rendered against plaintiff and in favor of defendant.

Inasmuch as this case was tried without a jury it would serve no useful purpose to remand it to the trial court.

For the reasons stated herein the judgments of the municipal court of Chicago are reversed and judgment is entered here for $1,889 against plaintiff and in favor of defendant on the latter’s amended counterclaim.

Judgments reversed and judgment here.

Friend and Scanlan, JJ., concur.

On Rehearing.

Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Fruehauf Trailer Company, to recover a balance of $336.98 claimed to be due from defendant, Albert M. Lydick, for repairs made to one of his trailers. Defendant filed an amended counterclaim for damages alleged to have resulted from plaintiff’s wrongful refusal to deliver to him a bill of sale for another and different trailer which he had purchased from the Fruehauf Trailer Company and fully paid for. The case was tried before the court without a jury and judgment for $211 was entered in favor of plaintiff on its statement of claim and judgment was entered against defendant on his counterclaim. Defendant appealed from both judgments. In an opinion filed December 19, 1944 we reversed both judgments and entered judgment here for $1,889 against plaintiff and in favor of defendant on the latter’s amended counterclaim. We arrived at the amount defendant was entitled to recover by awarding him $2,100 damages and deducting therefrom $211, the amount of damages the trial court properly allowed plaintiff on its statement of claim. Plaintiff’s petition for rehearing was allowed January 3, 1945. Said petition concedes plaintiff’s liability to defendant as alleged in his amended counterclaim. The only questions now before us pertain to the amount of damages defendant is entitled to recover and the proper measure of damages to be applied.

Defendant purchased a twenty-four foot automobile trailer for use in his trucking business from plaintiff on a conditional sale contract. When he made his final payment thereon on September 24, 1942, plaintiff wrongfully refused to give him a bill of sale for such trailer as it was obligated to do under the terms of the purchase contract. Plaintiff had not given defendant a bill of sale for the trailer up to the time the trial of this case commenced on February 4, 1944. By reason of plaintiff’s wrongful refusal to give defendant the bill of sale he was precluded under the provisions of the Illinois Motor Vehicle Act (ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.001 et seq.]) from procuring a certificate of title to the trailer or a license to operate same in this state. Thus defendant was deprived of the use of his trailer from September 24, 1942, when he made his final payment on same and his demand for a bill of sale was refused, until February 4, 1944, the date of the trial. However, defendant presented proof of his damages only for the period from October 16, 1942 to January 31, 1944.

Plaintiff suggests that in our original opinion we overlooked the point made in plaintiff’s brief that “in including in its judgment alleged damages occurring subsequent to the filing of defendant’s counterclaim this court overlooked the well settled, affirmative rule of law that where the injury and damages sued for are the result of repetition or continuing acts of the same class, recovery is limited solely to the actual damages suffered to the date of the commencement of suit and that no recovery may he had for damages suffered thereafter to the date of trial.” This precise point was not made in plaintiff’s brief but it did contend therein that ‘ defendant cannot recover o.n his counterclaim for any claim or demand which was not due at the time the plaintiff brought its action.” One case, Ellis v. Cothran, 117 Ill. 458, was cited in support of this latter tíontention and that case, in our opinion, had no application to the factual situation presented here. Furthermore, there was nothing in plaintiff’s argument in its brief under this point that tended in anywise to show that there was any merit in it. We did not overlook the point as made in plaintiff’s brief but disregarded it as not meriting serious consideration.

We will now consider the point first above quoted as made in the petition for rehearing, although it differs in some respects, from the comparable point made in plaintiff’s brief.

In its petition for rehearing plaintiff cites 25 C. J. S. (see. 193, p. 908) for the following rule:

“Where the injury sued for is caused by a mere repetition or continuing of acts of the same class, plaintiff’s recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit.”

Our attention is called to a number of cases in this and other jurisdictions which it is asserted support this rule. It may be agreed that they do, but the rule applies, as stated therein, “where the injury sued for is caused by a mere repetition or continuing of acts of the same class.” That rule can have no application to the facts in this case. Here the injury was caused not by “repetition or continuing of acts of the same class” but by one act — plaintiff’s wrongful conduct in refusing to deliver the bill of sale to defendant when he had completely paid for the trailer. It cannot be said that, because plaintiff was unyielding and did not see fit up to the time of the trial to reconsider its refusal to give defendant a bill of sale, such ‘failure to reconsider constituted “repetition or continuing of acts of the same class.” While the injurious effects'and consequences of plaintiff’s wrongful conduct continued after this suit was filed and after defendant had filed his counterclaim, there was no repetition or continuance of acts in this case as contemplated in the aforesaid rule. Plaintiff’s attitude can best be" characterized as an inflexible determination from the outset to refuse to give defendant a bill of sale, although he was entitled to same under the contract of purchase.

The rule plaintiff relies upon was selected from a number of rules (25 C. J.. S., sec. 193) applicable .to various situations in which damages resulting before or after the commencement of an action may or may not be recoverable therein.. Two other rules are stated in the same section of 25 C. J. S., either of which, in our opinion, is applicable here. We quote not only these two rules but the rule plaintiff relies upon as it appears in the text of section 193, 25 C. J. S., at p. 908:

“Plaintiff may recover for any damage which manifests itself up to the time of the verdict, where the thing complained 'of is a particular act occasioning a tortious injury to the person, or property, or where the wrong consists in the breach of a contract. Where the injury sued for is caused by a mere repetition or continuing of acts of the same class, plaintiff’s recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit. . . . Where, however, the same wrongful act produces both immediate and future injury, independent of any subsequent wrongful acts, all damages resulting before or after commencement of the action may be recovered therein.” (Italics ours.)

The wrong in this case “consists in the breach of a contract” by plaintiff and the damages resulting to defendant before and after the commencement of this action were produced by the same wrongful act “independent of any subsequent wrongful acts.”

In Sutherland on Damages, 4th Ed., see. 113, the author says at p. 388:

“It is not essential, however, that all the injurious effects of the act which constitutes the cause of action should have been developed and suffered before suit; it is immaterial to the right to recover for them when the effects manifest themselves with reference to the time of bringing the suit. But it is practically material to the plaintiff that the effects be so manifest, before and at the time of the trial, as to be susceptible of proof. The actual effects down to the time of the trial are provable; and whether those which may ensue later may be taken into account will depend on whether they are imminent and sufficiently certain. . . . But whether continuing damages may be computed after the commencement of the suit will depend on whether they proceed from the act complained of in that suit as the cause of action, or from some later act constituting a fresh cause of action.”

There can be no question but that plaintiff’s breach of its contract and wrongful refusal to deliver a bill of sale to defendant when he was entitled to receive same on September 24, 1942 deprived him of the use of his trailer from said date up to February 4, 1944, the date of the trial. There is no merit in plaintiff’s instant contention and we hold that defendant is not limited to the recovery of damages suffered by him prior to the date of the commencement of this suit or the filing of his counterclaim but that he is entitled to recover all damages resulting before or after the commencement of this suit and up to the date of trial.

The second-point made in plaintiff’s petition for rehearing is that “in allowing damages at the rate of $7.00 per day, this Honorable Court overlooked or misapprehended the fact that defendant’s own evidence established his loss, if any, to be an amount substantially less than $7.00 per day.”

On the basis of evidence presented, by defendant, which was recited in our original opinion, we held that it was-established with the definiteness required by law that the reasonable use or rental value of defendant’s trailer was $7 a day. Plaintiff presented no evidence but insists that defendant’s own evidence shows that the reasonable use or rental value of the trailer was not $7 a day but $4.83 a day.

Defendant testified that by reason of his experience in .using the trailer in question and other trailers over a long period of time and particularly by reason of his experience in the use of another trailer of the same size, style and type for the one-year period from March 15, 1942 to March 15, 1943, he determined that the reasonable use or rental value of his Fruehauf tráiler was from $7 to $10' a day. He further testified that the use or rental value of a trailer such as that involved herein is figured on the basis of 18 to 20 per cent of the gross freight revenue earned. The record discloses that the gross revenue earned by the aforementioned trailer ■ over the one-year period from March 15, 1942 to March 15, 1943 was $9,804.05. Plaintiff computed its use or rental value at $4.83 a day by taking 18 per cent of $9,804.05 or $1,764.75 as the use or rental value of that trailer for the year and dividing $1,764.75 by 365, the number of days in a year.

After reconsidering all the evidence in the record bearing on the question as to the reasonable use or rental value of the trailer per day, we have concluded that there is merit in plaintiff’s contention that the evidence showed that the average net use or rental value of the trailer was $4.83 a da;, as computed by it, and that $4.83 per day is the proper measure of defendant’s damages for the loss of the use of the trailer.

The evidence as to the constant demand for trailers because of war production and the consequent need of all available means of transportation and the further undisputed evidence that the trailer in question could have been used in defendant’s business for 397 days (from October 16, 1942 to January 31, 1944) if he had been able to secure a certificate of title and license for it, has been fully set forth and discussed in our original opinion and we deem it unnecessary to indulge in further discussion of such evidence here.

We hold that the evidence shows with reasonable certainty that defendant was wrongfully deprived of the use of his trailer for 397 days and that he should be compensated for such loss at the rate of $4.83 a day.

Plaintiff’s final point is that “the Court has by its judgment denied to plaintiff the benefit of affirmative rights granted it under the rules of law respecting mitigation of damages.” We stated in our original-opinion that we were not unmindful “of the rule that a party being damaged cannot stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. ’ ’ Although plaintiff insisted in the trial court and in his brief filed in this court that the reasonable use or rental value of defendant’s trailer during the time that he was wrongfully deprived of the use thereof was not the proper measure of damages to be applied to the facts in this case, it is now compelled to concede that it is. Plaintiff has also heretofore contended that the damages sought to be recovered by defendant were speculative and remote, not in the contemplation of the parties and could not be determined with any degree of certainty. It now admits in its petition for rehearing that if defendant had rented another trailer and put it “to the use to which he would have put the trailer in question” the rent of such trailer “could he recovered as damages.” Since defendant would have earned $4.83 a day by the use of the trailer if he had not been deprived of the use thereof and he would have had to pay the same amount for the rent of another trailer, which rent plaintiff concedes “could be recovered as damages,” he was under no obligation to rent a trailer since, to do so, would not have lessened his damages. It is immaterial under the facts of this case whether or not defendant rented another trailer, because the damages recoverable for loss of use of Ms own trailer or for the expense of renting another trailer would have been identical in amount.

It is also asserted that when it became evident to defendant that plaintiff would not furnish him a bill of sale it was Ms duty, if he elected not to rent another trailer, to purchase one for use in place of the trailer in question and that “the amount of damages would be reduced to interest on the amount of money paid by defendant for another trailer.” No such contention as this was made by plaintiff in the trial court or in its brief. It appeared that defendant did purchase another trailer and plaintiff’s claim as to the effect of such purchase on defendant’s damages was treated in our original opinion as follows:

“At some unstated time during the period involved herein defendant purchased another trailer which he used in his business and later sold at a profit. Plaintiff contends that defendant is not entitled to damages for loss of the use of the trailer in question during the period the newly purchased trailer was used in its plac,e and stead. There is not the slightest merit in this contention. The mere fact that defendant made an advantageous purchase of another trailer instead of renting one to use in his business in place of the Fruehauf trailer cannot inure to plaintiff’s benefit. The fact still remains that defendant lost the use of his trailer during said period, when it could have been used or rented if he had a license for it. ’ ’

Plaintiff cites no authority for its instant contention that it was defendant’s duty to purchase another trailer to replace the one involved herein and that defendant’s “damages under such circumstances are limited to interest on the purchase price of the trailer for the period of his ownership thereof.” No such rule could possibly apply to the facts, of this case. Defendant lost the use of Ms trailer by reason of plaintiff’s wrongful conduct and that loss was not in anywise alleviated by his purchase of the other trailer. Neither were defendant’s damages emanating from such loss reduced in the slightest degree by said purchase. Plaintiff had sole control of the situation and we cannot-conceive how defendant, even exercising the highest degree of care, could have prevented, lessened, minimized or avoided any of the damages suffered by him.

Plaintiff seemingly does not appreciate or want to appreciate that by its wrongful conduct it compelled defendant’s trailer to remain idle and useless from September 24, 1942 to February 4,1944, with the exception of 75 days when he operated it illegally in this state without a license and that during such period of enforced idleness he suffered a complete loss of the money his trailer would have otherwise earned. It is inconceivable how this loss could have been reduced even if defendant had rented or purchased another trailer to use in its place and stead during all of the time it was forced to remain idle.

The law respecting mitigation of damages is fully and clearly stated in Cedar Rapids & I. C. Ry. & Light Co. v. Sprague Elec. Co., 280 Ill. 386. There the court said at p. 391:

‘ ‘ Sutherland, in his work on Damages, says (sec. 88): ‘The law imposes upon a party injured from another’s breach of contract or tort the active duty of making reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, — that which was avoidable by the performance of his duty, — falls upon him. This is a practical duty under a great variety of circumstances, and as the damages which are suffered by a failure to perform it are not recoverable, it is a duty of great importance. Where it exists, the labor or expense which its performance involves is chargeable to the party liable for the injury thus mitigated. In other words, the reasonable cost of the measures which the injured party is bound to take to lessen the-damages, whether adopted or not, will measure the compensation the party injured can recover for the injury, or the part of the injury that such measures have or would have prevented. ’ This text is sustained by a large number of .decisions cited in the notes. Many other decisions are cited in 15 R. C. L. 442, where it is announced as a fundamental rule that a person who is exposed to injury by another’s wrong or negligence, whether tortious or through the breach of a contract, must use reasonable care and diligence to avoid loss or minimize the damages, and that so far as the damages result from his failurfe to use such care and diligence he cannot recover. The person seeking to recover damages caused by a defective construction of property is required to use reasonable efforts to protect himself, from loss, and can only recover such damages as he could not have avoided by the exercise of reasonable diligence.”

The law as stated in the Sprague case applies only where the injured party could have avoided loss or minimized the damages by the use of reasonable care and he failed to use such care. Under such circumstances he is precluded from recovering damages for as much of his loss as he could reasonably have avoided. As already stated, that rule can have no application here since defendant was helpless under the peculiar facts of this case and could not possibly have avoided any of the loss for which he claims damages. He could not even sell the trailer, because plaintiff’s wrongful refusal to give him a bill of sale prevented him from procuring a certificate of title, without which he could not legally sell it. We fail to perceive how under any theory the fact that defendant purchased another trailer could relieve plaintiff from its liability to respond in damages to him for wrongfully depriving him of the use of the trailer in question.

We hold that defendant is entitled to recover damages for the loss of the use of his trailer for 397 days, which loss, at the rate of $4.83 a day, amounts to $1,917.51. Said 397 days does not include the 75 . days’ illegal use of the trailer by defendant without an Illinois license. Deducting $211, the amount of damages properly allowed plaintiff on its statement of claim, from the $1,917.51, which defendant is entitled to recover on his amended counterclaim, leaves a balance of $1,706.51, for which amount judgment should be rendered against plaintiff and in favor of defendant.

The judgments of the municipal court of Chicago are reversed and judgment is entered here for $1,706.51 against plaintiff and in favor of defendant on the latter’s amended counterclaim.

J%idgments reversed and judgment here.

Friend and Scahlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    E. C. Tubbs, Trustee, Appellee, v. James C. Dunlop et al., on Appeal of Home Builders Investment Corporation, Appellant.
    Gen. No. 43,111.

      Heard in the second division of this court for the first district at the June term, 1944.
    Opinion filed February 13, 1945.
    Rehearing denied March 5, 1945. Released for publication March 5, 1945.
    Lambert Kaspers, Enoch J. Price and Owen N. Price, all of Chicago, for appellant.

      Braun & Brodie, of Chicago, for appellee; Robert G. Corbett, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought to foreclose a first mortgage trust deed made in 1927, which covered improved Chicago real estate registered under the Torrens Act and secured an unpaid principal indebtedness of $125,000. Based upon a master’s report and supplemental report a decree of foreclosure was entered which found and adjudged that plaintiff, as holder of the notes secured by the trust deed, was entitled to a first lien upon the real estate in question and that the rights and interests of Home Builders Investment Corporation, as the actual bona fide holder- of a tax sale certificate against the property, were subject and subsequent to the rights and interests of plaintiff. Home Builders Investment Corporation appeals only from that portion of the decree which relates to its tax sale certificate and does not question plaintiff’s ownership of the notes and trust deed, the amounts due and unpaid thereunder or plaintiff’s right to a decree of foreclosure against the obligors of said notes.

The complaint to foreclose was in the usual form and contained general allegations that the rights and interests of all of the defendants named therein, including Chicago Securities Corporation, were subordinate and subject to those of plaintiff.

The Chicago Securities Corporation filed an answer and alleged therein that prior to April 7, 1931 it was the legal owner of a certain tax sale certificate dated October 11, 1930, which was issued to J. W. Parker, its agent and nominee, and evidenced the sale of the real estate described in the complaint; that said property was sold because of the nonpayment of the general taxes levied' against same for the year 1928 and that the amount paid therefor at such tax sale was $2,902.12; that a memorial of said tax sale certificate appears on the register of titles pertaining to said real estate; that Parker duly assigned the tax sale certificate about April 7, 1931; and that it was informed and believed that Home Builders Investment Corporation was the legal owner of said tax sale certificate. Thereupon plaintiff amended his complaint by making the Home Builders Investment Corporation an additional party defendant by merely inserting its name therein under the general allegation that certain defendants had or claimed to have some interest in the real estate.

Home Builders Investment Corporation (hereinafter for convenience sometimes referred to as defendant), after having been served with summons, filed a verified answer in which it set forth in substance that the tax sale certificate was issued to one Parker by reason of his payment of $2,902.12 for the taxes levied against the real estate involved herein for the year 1928, that said tax sale certificate was registered in the registrar’s office and that defendant became the owner thereof by assignment. It was then asserted in the answer that defendant’s right, title and interest in and to said real estate were in all respects superior and paramount to those of plaintiff. The answer concluded with a prayer that the cause be dismissed as to it. Plaintiff filed no reply to defendant’s answer.

As heretofore indicated, the cause was referred to a master in chancery for hearing and his report in so far as it has reference to defendant’s tax sale certificate is as follows:

“Home Builders Investment Corporation, an Illinois Corporation, is now the actual bona fide legal holder and owner . . . [of the tax sale certificate] and entitled to all the rights, title and interests which have accrued and will hereafter accrue thereunder.
“It is claimed on behalf of said defendant, Home Builders Investment Corporation, that, in consequence of their ownership of said Certificate of Sale, they are entitled to a lien upon said premises prior and paramount to the lien as above set forth [of the trust deed].
“The Statutes of the State of Illinois, Chapter 30, Section 82, Paragraph 119 [Jones Ill. Stats. Ann. 132.075], in part read as follows:
‘ ‘ The holder of any certificate of sale of registered land or any estate, or interest therein for any tax, assessment or imposition, shall, within three years after the date of any such sale had prior to July 1, 1939 and within one year from the date of any such sale had thereafter, present the same or a sworn copy thereof, to the registrar, who shall thereupon enter on the register of the land a memorial thereof, stating the day of sale and the date of presentation, and shall also note upon the certificate of sale the date of presentation and the book and page of the register, where the memorial is entered. The holder of such certificate shall also within the same time mail to each of the persons who appear by the register to have any interest in the land, a notice of the registration of such certificate. Unless such certificate is presented and registered and notice given as herein provided within the time above mentioned, the land shall be forever released from the effect of such sale, and no deed shall be issued in pursuance of such certificate. ’
“The evidence shows that the memorial of said certificate was filed in the Office of the Registrar of Deeds of Cook County, Illinois on the 8th day of April, 1931, but the evidence fails to show that any notice was given pursuant to the terms of said statute to each of the persons who appear by the register to have any interest in the land. This provision of the statutes is in the nature of a limitation upon the rights and interests of the holder of the certificate, and I find that, in consequence of the provisions of said statute not being fully carried out, the lien, right or title of said defendant, Home Builders Investment Corporation, insofar as it in any manner affects the right, title or interest of the plaintiff in these proceedings, is barred by such statute and that any right, title or interest now held and owned in any manner by Home Builders Investment Corporation in consequence of being the owner of said Certificate of Sale is subject and subsequent to the rights and interests of the plaintiff as above set forth.”

The chancellor entered a decree which overruled defendant’s exceptions to the master’s report and approved and affirmed in all respects the findings contained therein. As already stated, defendant’s appeal questions only that portion of the decree that pertains to its tax sale certificate.

It is undisputed that the purchaser at the tax sale paid the general taxes on the real estate involved herein for the year 1928 and received the certificate of sale in question and that defendant is the legal holder thereof by assignment.

While it is readily apparent that plaintiff by his complaint as amended and by his failure to reply to defendant’s answer deliberately sought to avoid any direct issue as to the invalidity of the tax sale certificate, its validity was challenged on the hearing before the master, since the only issue tried by him in reference to the tax sale certificate was whether same was void because the notice was not given as required by the statute referred to in the master’s report. The master found in his supplemental report that “the plaintiff has asked no actual relief by his Complaint and is not asking that any of the tax proceedings shown by the evidence be annulled or set aside” and it will be noted that the master did not make a specific finding that the tax sale certificate was void. However, there can be no question but that he did in effect find it void when he declared in his report that the lien of defendant under its tax sale certificate was subject and subordinate to the lien of plaintiff’s trust deed “in consequence of the provisions of said statute [as to notice] not being fully carried out.” The master necessarily had to find that defendant’s tax sale certificate was void because of noncompliance with the provision of said statute as to notice before he could make the further finding that the lien of defendant’s tax sale certificate was. subject and subordinate to the lien of plaintiff’s trust deed. The tax sale certificate being valid in all other respects, if the master had not found it void because of the failure to give the required notice, the chancellor would have been compelled to hold that the lien of defendant’s tax sale certificate was superior and paramount to the lien of plaintiff’s trust deed, since the law is well settled that a valid lien for unpaid general taxes is superior to a mortgage lien whether the tax lien attaches before or after the execution of the trust deed. (People v. Etchison, 347 Ill. 320.)

However, regardless of plaintiff’s obvious attempt in the trial court to evade any direct issue as to the invalidity of the tax- sale certificate and of the master’s failure to make a specific finding that same was void, plaintiff concedes that the legal effect of the finding of the master and of the decree was to set aside and annul the tax sale certificate when he states in his brief: “The court properly found that Section 119 of Chapter 30 of the Illinois Statutes relating to conveyances was not complied with by the defendant in this case. For this reason, by the express terms of the section mentioned, the tax sale certificate held by the defendant became absolutely void and of no effect whatsoever and no deed could issue thereunder.” Therefore, we will consider that the legal effect of the' decree was to set aside and annul the tax sale certificate.

Numerous grounds are urged for the reversal of the decree but the only question we deem it necessary to determine is whether plaintiff in the foreclosure proceeding can avoid paying the 1928 general taxes on this land with the aid of a court of equity and have the benefit of their payment without reimbursing defendant who is the owner of the tax sale certificate by assignment.

Defendant contends that “the Court erred in refusing to find that it was the duty of the plaintiff to reimburse, or offer to pay, the defendant, Home Builders Investment Corporation, the amount paid at the tax sale described in said defendant’s tax sale certificate, with interest, before the plaintiff is entitled to any relief against this defendant” and that “the Court erred in failing to require the plaintiff to offer to do equity. ’ ’

Section 270 of the Illinois Revenue Act (par. 751, ch. 120, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 119.767]) provides in part as follows:

“Provided, that any judgment or decree of court, in law or equity, setting aside any tax deed procured under this act, or restoring the owner of same to possession, shall provide that the claimant shall pay to the party holding such tax deed ... all taxes and legal costs, as provided by laio. ... Ho final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of suGh deed or his assignors shall have properly paid or be entitled to in procuring such deed.” (Italics ours¡)

This statute clearly specifies that no final decree setting aside a tax deed shall be entered in any proceeding until the claimant “shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of such deed or his assignors shall have properly paid or be entitled to in procuring such deed.” While the statute refers only to tax deeds, in our opinion, it was intended to include tax sale certificates and to be equally applicable to same.

In McConnell v. Jones, 332 Ill. 620, wherein a bill was filed to foreclose a mortgage and the holder of a void tax deed filed a cross bill for relief, the court, after quoting at length from- the aforementioned statute, said at p. 626:

“Taxes levied upon' real estate become a charge upon the land itself, and if they are not paid the land may be sold for the taxes due thereon, and the title will pass regardless of any incumbrance resting upon the land. (Cooper v. Corbin, 105 Ill. 224; People v. Evans, 262 id. 235.) If the tax deed was void, then, under the provisions of paragraph 210 [now sec. 270] above set forth, before appellee was entitled to a decree setting aside such tax deed and for a foreclosure of his mortgage, free from appellants’ claim for taxes paid, it was necessary that appellee should make reimbursement to appellants for the payments of all taxes and legal costs which appellants had paid. This, appellee neither did nor offered to do. The decree does not require him to make such reimbursement, and it is therefore erroneous.”

Prior to the enactment of section 270 of the Revenue Act there was a long line of decisions in this state which held that before a tax deed or tax sale certificate could be set aside, annulled or removed as a cloud upon title, reimbursement would have to be made to the holder thereof under the fundamental principle that a plaintiff would not be granted equitable relief against a defendant unless he offered’ to do equity where equity and good conscience required it.

In Phelps v. Harding, 87 Ill. 442, where the owner of real estate sought the aid of a court of equity to set aside tax sales of premises made before he acquired title thereto and certain tax sale certificates as a cloud upon his title, the court said at pp. 445 and 446:

“The defendant in error is the aggressor in this controversy, as he claimed the interposition of a court ■ of equity to compel the cancellation of these tax certificates' held by the Farwells against these premises, in order that he might be quieted in the possession of the property. He is the actor, and by appealing to a court of equity to' aid him to brush out of his way what he deems an obstacle to the beneficial enjoyment of the premises, it would seem equitable and just he should reimburse the holders of - these certificates. They may be of value to them. If they are of no value and of no validity, they could not be set up any where in any court to the injury of the defendant in error. He, however, has treated them as having validity and as calculated to disturb him in the tranquil enjoyment of the property. Those taxes were a charge upon the land, and have been paid by plaintiffs in error, and it seems equitable that the defendant in error seeking to set them aside should be allowed to do so, upon the condition that he refund the taxes paid and the amount expressed in the certificates of sale, to the plaintiffs in error. As the defendant in error desires these certificates' put out of his way, equity says, in doing so, require him to pay the money expressed in them. The view taken by the court below was injustice to plaintiffs in error, and the decree must be reversed, and the cause remanded with directions to enter a decree consistent with this opinion.”

A certificate of purchase at a tax sale is assignable by indorsement and the assignment transfers all the right and title of the holder to the assignee, who 'is entitled to reimbursement before the certificate of purchase can be cancelled as a cloud upon the title. (Ambler v. Glos, 237 Ill. 637.) Peacock v. Carnes, 110 Ill. 99; Alexander v. Merrick, 121 Ill. 606; Miller v. Cook, 135 Ill. 190; Graham v. O’Connor, 350 Ill. 36, are to the same effect.

In Glos v. Carlin, 207 Ill. 192, it was attempted in the decree to set aside a tax deed by indirection just as the decree in the instant case sought to set aside the tax sale certificate by indirection. There the court said at p. 198:

“It is said by counsel for appellees that there was here no finding by the court that the tax deed was a cloud, and no decree that it should be removed as a cloud. The court, however, finds in its decree that ‘Jacob dos has no right, title or interest in or to said lots under the said tax deed, issued to him, or in any manner whatsoever. ’ This finding is substantially equivalent to a finding that the tax deed was a cloud upon the title and should be removed, because the latter finding would have given no further or greater relief than the finding actually made.”

There can be no question but that under section 270 of the Revenue Act and as a matter of equity a plaintiff attempting to set aside a tax sale certificate or to have a cloud created by an invalid tax sale certificate removed from his title must make reimbursement of all moneys properly paid for such tax certificate with interest and costs.

No serious attempt is made in plaintiff’s brief to answer defendant’s contention that it is entitled to reimbursement as the owner of the tax sale certificate before a decree could be entered setting aside such certificate and for a foreclosure of the mortgage free from defendant’s claim for taxes paid. This statement is found in plaintiff’s brief: “While it is true - that reimbursement has been required in eases where the certificates were ostensibly valid, the Supreme Court of Illinois has not applied this doctrine of reimbursement in cases where the certificates were totally voich ’ ’ He then cites two cases, Kelle v. Egan, 256 Ill. 45 and Snow v. Glos, 258 Ill. 275, in support of his position that “it is not required that the holder of a tax sale certificate be reimbursed when such certificate is absolutely void.” After a careful examination of these cases we find that they are not in any wise applicable to the situation presented here and it would therefore serve no useful purpose to discuss them. Section 270 of the Revenue Act, heretofore set forth, making reimbursement obligatory, where it is sought to set aside a void tax deed or tax sale certificate, is not even mentioned in plaintiff’s brief.

All other points urged by both parties have been considered but in the view we take of this case we deem it unnecessary to discuss them.

We are impelled to hold that the trial court erred in entering the decree of foreclosure, which in legal effect set aside and annulled defendant’s tax sale certificate without requiring plaintiff to reimburse defendant for all moneys properly paid for such certificate with interest and costs.

For the reasons stated herein the decree of the circuit court of Cook county is reversed and the cause is remanded with directions to enter a decree consistent with this opinion.

Decree reversed and cause remanded with directions.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Ethel Snyder Jones, Appellant, v. Jessie Katz, Individually and Executrix and Trustee of Estate of George F. Harding, Deceased, Appellee.
    Gen. No. 43,030.

      Heard in the second division of this court for the first district at the April term, 1944.
    Opinion filed February 13, 1945.
    Rehearing denied March 5, 1945. Released for publication March 5, 1945.
    Victor M. Harding, Jr., of Milwaukee, Wisconsin, for appellant.
    Donald P. Vail and Arthur J. Murphy, both of Chicago for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Ethel Snyder Jones brought suit in chancery against Jessie Katz, individually and as executrix and trustee of the estate of George F. Harding, deceased, to recover the amount of a gift in trust under the will of her grandfather, Abner C. Harding. Trial by the court resulted in an order dismissing the complaint for want of equity, from which plaintiff appeals.

From the essential facts it appears that plaintiff’s grandfather, Abner C. Harding, a resident of Warren county, Illinois, died in 1874, owning in excess of 200 tracts of land in this and other states, as well as considerable personal property invested in bonds, stocks, mortgages and notes, and leaving a will, made the year prior to his death, which contained, inter alia, the following provisions:

“3rd. I give & devise to my son George F. Harding the sum of Twenty Thousand Dollars to be by bim invested in Bonds or mortgages bearing interest, in trust & for the use of my daughter .Mary, wife of George Snyder & for her support, directing that my son or his Heirs or successor pay to her the interest derived therefrom during her life, and at her decease the said sum to remain a part of my Estate & be invested & become the absolute property of my said son George F. Harding & his Heirs.
“In like manner I bequeath to him my said son, the sum of Ten Thousand Dollars to be by him invested in interest bearing securities & the interest paid yearly to each of the children of my said daughter, the Interest of said sum, & upon the marriage or age of Manhood my said son is directed to pay said investment to each of them, provided in his opinion they will make good use of it, but if not then to retain it & give in the respective case the interest only. Upon the death of any one of said children then this bequest is to be determined & the investment remain the property of my said son or his Heirs.”

In the fourth clause of the will he gave the rest and residue of his estate, aside from certain specific legacies, to his son George F. Harding (hereinafter called “Sr.”), who was also named executor.

At the time of his death the testator had two children, George F. Harding, aged 44, and Mary Snyder, aged 41, both of whom were married and had children. Mary then had five children, ranging in age from eighteen years to one year. At the time of the testator’s death, none of Mary’s children was married and none had reached 21 years, the age of manhood. A sixth child, Ethel, the plaintiff herein, was born a year after Abner C. Harding’s death, and before any of' Mary’s children had married or reached the age of manhood. Mary Snyder died in 1900.

George F. Harding, Sr., accepted the trust established by his father’s will, administered the estate, and acted as trustee for the benefit of his nephews and nieces until he died in 1915. He evidently construed the foregoing provisions of his father’s will as establishing a gift in trust of $10,000 to each of Mary’s children, because in his final report as executor, presented to the "Warren county court in May 1893, he reported that he had paid $10,000 to Lenora, George and Schuyler, respectively, the three oldest children of Mary, but that he had not yet paid the sum. of $10,000 to Bertha nor to Abner Clark, since Bertha had not yet married and Abner Clark was not yet 21 years of age, but that he had set aside the sum of $10,000 for each of them. No mention was made of Ethel, the youngest child, who was then 17 years of age. It appears from the testimony of Abner Clark that Bertha received her $10,000 share only after threatening to bring suit. Abner Clark, who attained his’majority in 1894, never received his full $10,000 legacy from George F. Harding, Sr., but did receive, with considerable delay and difficulty, monthly sums by way of interest. About two or three years before the trustee died, he paid Abner Clark $5,000 in principal, and later his son, George F. Harding, Jr., who was the executor and residuary beneficiary of his father’s estate, continued monthly payments of interest and finally in 1919 paid Abner Clark $5,000, representing the balance of his share in the trust.

Because the testimony of the plaintiff, Ethel, was excluded by the trial judge under section 2 of the Evidence Act (Ill. Rev. Stat. 1943, ch. 51 [Jones Ill. Stats. Ann. 107.068]), the facts with respect to payments made to her as beneficiary are somewhat uncertain. It is reasonably clear, however, that the trustee, George F. Harding, Sr., intended to treat Ethel in the same manner as her brothers and sisters, because he apparently made monthly payments to her in the same way as he did to Abner Clark. In the deposition of Abner Clark, taken in August 1941, he testified that in the summer of 1915 he had a conversation with George F. Harding, Sr., regarding Ms sister Ethel, who had asked him to intercede and try to get George F. Harding, Sr., to pay her the interest or the equivalent that the other children had received under the will. Harding then stated that he intended to provide for Ethel by giving her the equivalent received by the other children but would not give her any of the principal until he thought she “would make proper use of it,” using substantially the language of the will. Whether or not he made the monthly payments, as he said he intended to do, is not clear, because all records prior to 1934 were lost and defendant was unable to produce any documentary evidence on the question. Gregory T. Van Meter, who had been associated in the handling of real estate with George F. Harding, Sr., since 1886 and thereafter with George, Jr., until his death, was called as a witness on behalf of plaintiff, but his testimony was so inconclusive and contradictory as to be of no probative value. He first stated that he was not familiar with payments made by George F. Harding, Sr.; that “I don’t think he ever made any payments to her [Ethel]. I don’t recall any payments going to the plaintiff from George F. Harding, Sr. I knew that George F. Harding, Sr., was making payments to Ms nephews and nieces”; and subsequently he contradicted himself by saying that “As to Ethel Jones, I remember payments to her, too, as to payments made by George F. Harding, Sr.” It is clear, however, from the testimony of Jessie Katz, the executrix, who had served as secretary to George F. Harding, Jr., since 1917, and the corroborative evidence of Gregory T. Van Meter that shortly after the death of George F. Harding, Sr., his son, George F. Harding, Jr., commenced making payments to Ethel which continued without interruption until his death in April 1939. These payments of $40 a month regularly, or the equivalent of 5 per cent on the principal gift of $10,000, began while George, Jr., was acting as executor of his father’s estate, which was not closed until 1919, and Abner Clark testified that George, Jr., had told him he made the payments in obedience to instructions from his father, who had also directed him to pay Ethel the principal of her gift in the same manner as the other children of Mary Harding Snyder had received the principal of their gifts under their grandfather’s will. After George F. Harding, Jr.’s death in April 1939, plaintiff received her last monthly check of $40, dated earlier that month, and subsequently in November of the same year this suit was instituted.

When George F. Harding, Sr., died in 1915 he left a will naming his son, George, Jr., as the executor and devising to him all his property, subject to certain trusts. The only personal property listed in the inventory of the estate consisted of goods and chattels valued at $400, but it included ten parcels of real estate. The final report and account showed merely minor disbursements and no claims of creditors.

After the death of George F. Harding, Jr., Jessie Katz, as executrix, filed an inventory containing, inter alia, the following items: (1) a parcel of real estate acknowledged to have been received by descent from George F. Harding, Sr.; this parcel was not inventoried in the father’s estate but shows as an item in the inventory of Abner 0. Harding, the decedent’s and plaintiff’s grandfather; (2) two additional parcels of. real estate acknowledged to have been received by descent from the decedent’s father, George F. Harding, Sr.; these parcels had likewise not been inventoried in the father’s estate; and (3) three further parcels of real estate which had been contained in the inventory of the estate of George F. Harding, Sr.

At the conclusion of the hearing the chancellor prepared a written opinion wherein he held, or at least assumed, that plaintiff was entitled to a legacy in trust under her grandfather’s will, but could not recover from the estate of the trustee’s son, George F. Harding, Jr., because there was no proof that George, Jr., personally assumed or became legally obligated to pay the indebtedness of his father, and that her claim was barred by the Statute of Limitations (Ill. Rev. Stat. 1943, ch. 83 [Jones Ill. Stats. Ann. 107.259 et seq.]) and laches.

Preliminary to a discussion of the defenses which the chancellor held as a bar to plaintiff’s recovery, two questions touching upon a construction of the will require consideration. It is first suggested by defendant, but not seriously urged, that ‘ ‘ There is a grave-question as to whether the testator intended to provide more than a total of $10,000 for all of the children of ‘Mary. ” It is true that the will speaks of ‘ ‘ the sum of Ten Thousand Dollars,” but the language immediately following indicates that the testator intended each child to have $10,000, since he directed the trustee ‘ ‘ to pay said investment [namely, the sum- of $10,000] to each of them” upon each child’s marrying or attaining the age of manhood, and that was the construction followed by the trustee who paid the $10,000 gifts to each of Mary’s four older' children and gave Abner Clark, Ethel’s older brother, the fifth child, $5,000 during his (the trustee’s) lifetime. George, Jr., as executor of his father’s will, evidently adopted that construction, because he paid Abner Clark the remaining $5,000 after George F. Harding, Sr.’s death and told him that he had been directed by his father to also pay the principal to Ethel.

The second preliminary consideration urged is that since the bequests under the testator’s will to the children of Mary Snyder gave to each child an immediate interest, the after-born plaintiff, Ethel, did not take under that will. It is argued, on the sole authority of Lancaster v. Lancaster, 187 Ill. 540, that where there is an immediate gift of interest without postponement, only those members of a class who are alive at the death of the testator will take. The Lan caster case involved the question whether a class gift includes persons who died before the testator, and in that proceeding distribution of principal was not postponed beyond the testator’s death. In the case at bar, however, the will provided for postponement of principal until a child married or reached the age of manhood, and the decisions in this and other states are clearly to the effect that such postponement leaves the class open for after-born children. It was so held in First Nat. Bank of Chicago v. McIntosh, 366 Ill. 436 (decided in 1937). The testator in that proceeding had devised property to trustees “to be held by them in trust for the use and benefit of each and all of my grandchildren until the youngest grandchild living at the time of my death shall have attained the age of twenty-five (25) years,” at which time distribution was to be made. The testator had four grandchildren when he died, and two more were born before the time of distribution. The court held that the after-born grandchildren should share in the gift, and cited in support of its conclusion the early case of Handlerry v. Doolittle, 38 Ill. 202; Howe v. Hodge, 152 Ill. 252, and other decisions. In Howe v. Hodge, the testator gave directions to his executors in respect to the distribution of certain of his property among all his grandchildren as they should, respectively, arrive at the age of 30, and stated in his will: ‘ ‘ My intention in disposing of the property named in this paragraph is to divide it equally among all my grandchildren.” Commenting on this clause, the court said: “This language clearly points out both the subject and the objects of his bounty, and indicates a gift to his grandchildren, as a class, of the beneficial interest in and equitable title to all of the residuary estate. Such interest and title vested in the grandchildren immediately upon the death of the testator, but subject to open up and let in after-born grandchildren.” As heretofore stated, Ethel, who was the youngest child of Mary, was born a year after the testator’s death but prior to the date when any child of Mary had married or reached the age of manhood, and it is therefore clear that since Ethel was born before the time the will first called for payment of principal, the class opened to admit her as a member. It is suggested that if the will should require the trustee to pay $10,000 to each of the children of Mary, he would have no way of knowing how many sums of $10,000 he would be obliged to pay over, if after-born children were to share. Such contingencies, have arisen in cases where the executor and trustee were not the same person, or where the estate was barely solvent, but in this proceeding the executor, trustee and residuary beneficiary under Abner C. Harding’s will were all one and the same person, and it appears that the estate was amply solvent to pay all children, whenever born, the sum of $10,000 apiece. In Parker v. Leach, 66 N. H. 416, 31 Atl. 19, the problem actually arose. The testator had there devised to each of the sons of David It. Leach the sum of $1,000, and to each of the daughters the sum of $500, to be paid as they arrived at the age of 21 years, and the balance of the estate was given to trustees for certain charitable purposes. At the date of the testator’s death David R. Leach,was 51 years of age and had seven children. One more child was born after the testator’s death. In a proceeding by the executors for instructions, it was held that the after-born child should share with the other children of David R. Leach, and the executors were instructed to “settle their accounts and pass- the remaining estate to the trustees, subject to the payment of all legacies which now or which may hereafter exist under the will, on the trustees’ furnishing bonds to the executors to pay these legacies and save them harmless from not paying the same.” In Defflis v. Goldschmidt, 1 Merivale 417, the testator bequeathed 2000 pounds to each of his sister’s children, payable when they should attain the age of 21. In a suit for instructions brought by the executor, the residuary beneficiary under the will contended that the gift should be confined to those children alive at the testator’s death, but the master of the rolls held otherwise, saying: “I am of opinion, that it was the intention of this Testator not to exclude any of his sister’s children, and that intention must be complied with, even to the extent of impounding the whole residue, should that appear to be necessary.” The matter was then referred to a master in chancery to determine what would be a proper sum to set apart to answer the legacies of 2000 pounds to each child who might be born thereafter. From the context of the will in the case at bar and the circumstances adduced in evidence, it is obvious that the testator intended to provide for all of Mary’s children, not merely those living at his death, and decisions, both in Illinois and in other jurisdictions, indicate that the wishes and intentions of the testator to benefit as many members of the class as possible should outweigh the inconvenience to the trustee of not knowing the extent of his obligation until some future date.

This leads to a consideration of whether plaintiff’s right to recover her share of the gift in trust has been lost through the statute of limitations or laches. At the time of the trial Ethel Snyder Jones was ahnost 70 years of age, and it appears reasonably certain that she received interest on her legacy in accordance with the terms of the testator’s will until the death of George F. Harding, Jr., in April 1939. The question therefore arises whether she had a cause of action for the recovery of anything prior to that date, because she instituted this proceeding shortly after George, Jr.’s death. Her grandfather’s will did not require the trustee to pay over the principal upon the marriage or age of manhood of any of the children, but only “provided in his opinion they will make good use of it, but if not then to retain it & give in the respective case the interest only. ’ ’ Since the trustee and his successor continued the payments of interest on the principal of the gift throughout the.many years ending in 1939, plaintiff had no cause to complain,, and she should not he chargeable with laches because she did not seek to recover the principal at some earlier date. The suggestion that in order to preserve her rights, it was incumbent upon her to attempt to coerce the trustee into doing something which the testator’s will said need be done only in the trustee’s discretion, is untenable, and to charge her with laches for not doing that which would have been rendered futile by the very terms of the will, cannot be sustained as a sound equitable doctrine. •

In this connection it is argued that George •F. Harding, Sr., in making his final report as executor of Abner C. Harding’s estate, did not mention Ethel; although he did mention the other nieces and nephews, and it is urged that the order of the county court approving the final account and report should. be interpreted as a construction of the will to exclude a gift to Ethel. The record of the Warren probate court discloses that notice had been served on all legatees, but at the time the report was filed and approved Ethel had not yet come of age and no guardian had ever been appointed for her. Therefore the most that can be claimed by this proceeding is that the failure to serve notice on Ethel amounted to a repudiation of the trust toward her; but that theory does not square with the facts, because it is not controverted that the trustee later acknowledged Ethel’s right to a share before his death, nor is it denied that George, Jr., continued the monthly payments by specific direction of his father, the trustee. Therefore, even though the final report should, by a strain of logic, be construed as a repudiation, it was nevertheless subsequently revoked by the trustee and for many years thereafter plaintiff received her regular interest payment. The facts adduced upon the trial indicate that there was never any breach of the trust toward Ethel prior to George F. Harding, Jr.’s death in April 1939. It is undisputed that plaintiff received a sum equal to interest on $10,000 at least from 1917 to 1939. The evidence of payments prior thereto is somewhat uncertain, because plaintiff was not competent to testify to the facts, and no other witnesses knew with any certainty whether or not Ethel had received payments prior to the trustee’s death; but the statements made by George F. Harding, Sr., to Abner Clark and conversations of witnesses with • George F. Harding, Jr., indicate that such payments were made and continued after George, Sr., died in 1915. Limitations or laches being affirmative defenses, defendant had the affirmative burden of establishing them. We find no evidence in the record of any repudiation or breach of the trust toward Ethel prior to 1939, notice of which was ever brought home to her; the undisputed evidence shows, rather, that the trust was fully performed by the trustee and his successor with respect to plaintiff’s share, until shortly before suit was instituted. Although many years had elapsed since Abner C. Harding’s death in 1874, that circumstance alone does not constitute laches. The rule is well settled that until the beneficiary of a trust has knowledge of a breach of trust on the part of the trustee, no cause of action accrues, and the beneficiary cannot be charged with laches. Professor Bogert, in his exhaustive treatise on Trusts and Trustees, vol. 4, sec. 951, pp. 2757 and 2758, states the rule as follows: ‘ ‘ Thus, if a trust has been in operation for forty years, and the trustee has been performing his duties, he cannot defend against future performance on the ground that his obligation under the trust is forty years old and hence barred by some statute of limitations. The length of time since he assumed the trust is not material. The only question of importance is, How long is it since he violated the trust?” The rule thus enunciated, that until notice of a repudiation or breach is brought home to the beneficiary there is no basis for the charge of laches, was followed in Snyder v. Snyder, 280 Ill. 467, and Barnes v. Barnes, 282 Ill. 593.

One of the grounds urged in support of the defense of laches and limitations is that plaintiff should have presented a claim against the estate of George F. Harding, Sr., when he died in 1915 or brought suit for the appointment of a successor trustee. That argument would be tenable if the monthly payments of interest had ceased with the death of the trustee, or if plaintiff had known that the trustee had commingled trust property with his own she could have presented a valid claim at the time of his death under the provisions of chapter 3, par. 202, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 110.299]; but since George, Jr., then acting as executor of his father’s estate, resumed the payments of interest, and acknowledged to Abner Clark, plaintiff’s brother, that he was going to make Ethel the same payments her brothers and sisters had received, it would be unreasonable to hold that she was required to pursue either of these courses. The facts indicate' that George, Jr., assumed the obligations of his father as trustee toward Abner Clark without formal appointment, and it is undisputed that Abner Clark filed no claim against the original trustee’s estate but nevertheless received monthly payments of interest from George, Jr., for several years and finally received the balance of $5,000 principal from George, Jr., in 1919. Ethel undoubtedly knew of these circumstances, and therefore she had no occasion to file a claim against her uncle’s estate or to bring suit for the appointment of a successor trustee. It was perfectly natural that she should be content to let George, Jr., act as successor trustee for her without a formal court order, since Abner Clark, who was evidently willing to do so, had received full payment from George, Jr., without resorting to the filing of a claim or suit. In the light of these circumstances we hold that since defendant failed to establish by evidence either the fact that the trust was expressly repudiated or breached or the fact that notice of such repudiation or breach was brought home to plaintiff, the defense of laches and limitations, notwithstánding the span of years which elapsed since plaintiff’s gift in trust ivas established, does not bar her from recovery. The provision in the will directing the trustee to keep the principal as part of his own estate, in the event any child died before receiving his or her share, thus making him a contingent remainderman of the trust which he administered, might account for the reluctance of George F. Harding, Sr., to pay over the principal to either Abner Clark or Ethel; and since the trustee could determine the time for paying the principal, Ethel was in no position to insist upon its payment but was obliged to be content with merely the receipt of interest. However, her willingness to receive interest all these years, during which she abided by the wishes of her uncle and cousin, whom she evidently trusted, should not operate to deny to her the rights of a beneficiary because she had taken no legal action when the terms of the will which-established the trust, would have rendered such action futile.

There remains for consideration defendant’s contention that under paragraph 1, chapter 59, Ill. Rev. Stat. 1943 [Jones III. Stats. Ann. 55.01], an executor cannot be charged upon a special promise to answer any debt out of his own estate, nor can an individual be charged to answer for the debt of another, unless the promise is in writing. The chancellor pointed out in his opinion that the statute had not been pleaded as a defense and therefore he did not predicate his conclusions thereon, but rather on the failure of plaintiff to prove that George F. Hard ing, Jr., personally assumed or became legally obligated to pay the indebtedness of his father. In reaching that conclusion we think he overlooked the significance of section 9 of the Statute of Frauds as applicable to the undisputed evidence. Section 9 reads as follows: “All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; dr else they shall be utterly void and of no effect: Provided, that resulting trust or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol.” Under the facts presented we entertain no doubt that George F. Harding, Jr., became successor trustee toward Abner Clark and Ethel either by construction, implication or operation of law. He treated the trust as an obligation to which he had succeeded after his father’s death and acquired and exercised the same duties and responsibilities toward the beneficiaries of the trust as though he were the original trustee, at least as to the extent of the assets which he had acquired from his father’s estate. It is a fundamental and well-settled rule that the death of a trustee does not terminate the trust; and that a trust cannot fail for want of a trustee. It would therefore follow that the trusts, for the-benefit of both Abner Clark and. Ethel continued, and until a new trustee should be appointed, the legal representative of George F. Harding, Sr., was obligated to see that the trusts were executed. 1 Scott on Trusts, sec. 101; 3 Bogert on Trusts, sec. 529; Simmons v. Barns, 263 Mass. 472, 161 N. E. 821. George, Jr., assumed that obligation by commencing to make payments of $40 a month to Ethel shortly after his father’s death and continuing those payments without interruption until he died in 1939. He likewise made monthly payments after his father’s death to Abner Clark and later paid him the balance of principal on his $10,000 legacy. Moreover, he- told Abner Clark that he made these payments to him and to Ethel in obedience to his father’s directions to see that they receive the same as their brothers and sisters had already received under his grandfather’s will. In view of the fact that G-eorge F. Harding, Sr., was obligated as trustee toward plaintiff, that George F. Harding, Jr., received his father’s estate charged with the payment of all debts and obligations and because of the natural relationship of trust and confidence which the relative position of the parties would naturally engender, as disclosed by the evidence, we think that George, Jr., became constructive trustee of the property acquired from his father, subject to the usual duties and responsibilities of a trustee, without the necessity of formal appointment. In Housewright v. Steinke, 326 Ill. 398, the court said that “Constructive trusts are raised by equity for the purpose of working out right and justice though there was no intention of the party to create such relation, and often directly contrary to the intention of the one holding the legal title,” and in Kochorimbus v. Maggos, 323 Ill. 510, it was held that “A party may voluntarily assume a confidential relation towards another, and if he does so he cannot thereafter do any act for his own gain at the expense of that relation. . . . The origin of the confidence is immaterial. It may be moral, social, domestic or merely personal. If the confidence, in fact, exists, is reposed by the one party and accepted by the other, the relation is fiduciary, and equity will regard dealings between the parties according to the rules which apply to such relation.” The relationship of the parties in this case required the application of the principles enunciated in these decisions, and we are therefore of . opinion that the property acquired by George, Jr., from his father’s estate should be held subject to plaintiff’s claim and constructively charged with the payment of her legacy under section 9 .of the Statute of Frauds without any specific writing.

At the time of the trial plaintiff was close to 70 years of age, married and living with her husband in California. Her only surviving brother and sister both expressed the opinion that she is capable of making good use of her legacy, and no evidence was adduced to the contrary. Since the trustee is. no longer alive to determine whether the beneficiary could make good use of the legacy, it becomes a question for determination by the court. We perceive no reason why the payment of the principal should be longer deferred. It was undoubtedly intended by the testator to have been paid long since, and plaintiff is entitled to receive the principal either at once or in the due course of administration of the estate of •George F. Harding, Jr.

Accordingly, the order of the court dismissing the complaint for want of equity is reversed, and the cause is remanded with directions that a decree be entered in favor of plaintiff, as prayed for in her complaint, and in harmony with the views herein expressed.

Order reversed and cause remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.