Cheevers v. Stone
| Decision Date | 24 April 1956 |
| Docket Number | Gen. No. 46766 |
| Citation | 10 Ill.App.2d 39,134 N.E.2d 32 |
| Parties | Samuel R. CHEEVERS, Appellant, v. Harry STONE and Roger Lumber Company, a corporation, Appellees. |
| Court | United States Appellate Court of Illinois |
Geter & Geter, Chicago, Howard D. Geter, Jr., Antoine L. Joseph, Chicago, of counsel, for appellant.
Maurice Weissman, Chicago, for appellees.
This is an appeal from an order of the Municipal Court striking plaintiff's statement of claim and dismissing the suit.
The statement of claim contained three counts. The first count states a claim against defendant Harry Stone for compensation in the sum of $1,500 arising out of a contract between them relative to the construction of a public garage. Count two states a claim against the same defendant for $1,500, being the reasonable value of services rendered in the construction of the public garage. The third count states a claim against defendant Roger Lumber Company for $1,500, being the reasonable value of services rendered 'at the special instance and request of Defendant, Roger Lumber Company, a Corporation * * * for Defendant as a contractor.'
The written contract between plaintiff and defendant Stone contained promises by plaintiff to do the following: The balance of the contract was vague, but we gather that plaintiff further promised to estimate the cost of construction and to procure vital materials. Plaintiff's fee for these services was to be $1,500. Plaintiff was not and is not now an attorney.
Defendants answered the complaint with a statement of defense based upon a plea of res judicata. This statement set forth a prior bill in equity to foreclose a mechanic's lien entitled Cheevers v. Stone, 53 C 13460, filed in the Circuit Court of Cook County, and alleged that said proceeding was based upon the same written contract that forms the basis of plaintiff's action in the present proceeding. The statement of defense further alleged that defendants filed a motion to dismiss the bill in equity on the following grounds:
'(a) That items numbered (1) and (2) in plaintiff's complaint cannot properly be made the subject matter of a claim for lien in that it appears that said services are of a legal character and constitute the practice of law; that plaintiff does not allege he is duly licensed as such; that the court will not lend its aid in the enforcement of a contract contrary to law;
'(b) That the enforcement of the contract dated January 6, 1951, is contrary to public policy in that the contract contemplates the use of political pressure and is of a character contrary to the law and constitutes a form of undertaking to which courts will not aid in enforcement.'
The statement of defense further states that the Circuit Court granted said motion to dismiss and entered the following order:
'(1) That the Court finds that said motion to strike the complaint of plaintiff is well founded and said motion is accordingly sustained, and it appearing to the Court that the plaintiff stands by said complaint and does not wish to plead over;
'(2) It is accordingly ordered, adjudged and decreed that said complaint be stricken for want of equity, and suit of plaintiff is accordingly dismissed.'
The statement of defense concludes that the order of the Circuit Court in the action to foreclose the lien was an adjudication that the contract was illegal and unenforceable, and that said adjudication is determinative of the present proceeding. Defendants moved to dismiss the complaint.
Plaintiff then moved to strike defendants' answer. The court set the case down for trial, heard the arguments, overruled plaintiff's motion, sustained defendants' statement of defense and dismissed the suit on the ground that the prior adjudication was a bar to this action.
In this appeal plaintiff contends that the trial court erred in applying the doctrine of res judicata for the following reasons: (1) Defendants' answer was insufficient for a plea of res judicata because there was no showing there was a hearing on the merits in the prior equity action; (2) there was no specific finding in the prior action that the contract was illegal; (3) the contract contained certain legal covenants which were separable from the illegal ones; (4) the dismissal of the prior action to foreclose a mechanic's lien for want of equity does not preclude an action at law on a quantum meruit theory for work done; (5) the plea of res judicata is insufficient insofar as defendant Roger Lumber Company is concerned because that company was not a party to the prior action.
To be effective as a prior adjudication, judgment must have been upon the merits, but it is immaterial whether the judgment was upon the facts proved or upon the facts alleged which were admitted by demurrer. Life Printing & Pub. Co., Inc., v. Marshall Field, 327 Ill.App. 486, 64 N.E.2d 383; Marie M. E. Church v. Trinity M. E. Church, 253 Ill. 21, 97 N.E. 262. Defendants' motion to dismiss plaintiff's bill to foreclose corresponded in our present day practice to a demurrer and had the effect of admitting the facts well pleaded in the bill.
While it is true that a motion to dismiss may be based on a technical deficiency in a pleading and in such case will not bar another action for the same cause, Sattenstein v. Earl, 328 Ill. 148, 159 N.E. 222; Marie M. E. Church v. Trinity M. E. Church, 253 Ill. 21, 97 N.E. 262, where, as in the instant case, an order of dismissal follows the ruling on the motion and...
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...under an illegal agreement. Practice Management , 256 Ill. App. 3d at 953, 195 Ill.Dec. 192, 628 N.E.2d 656.¶ 44 Cheevers v. Stone , 10 Ill. App. 2d 39, 45-46, 134 N.E.2d 32, 36 (1956), is another illustration of this principle. The plaintiff in that case was a nonattorney who contracted to......
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