Cottrell v. Gerson

• Decision Date: 21 July 1938
• Docket Number: Ag. No. 4.
• Citation: 16 N.E.2d 529,296 Ill.App. 412
• Parties: COTTRELL v. GERSON.
• Court: United States Appellate Court of Illinois

296 Ill.App. 412

16 N.E.2d 529

COTTRELL

v.GERSON.

Ag. No. 4.

Appellate Court of Illinois, Fourth District.

July 21, 1938.

Appeal from Circuit Court, Madison County; R. W. Griffith, Judge.

Replevin suit by J. L. Cottrell against Albert W. Gerson to recover possession of certain barbershop furniture and fixtures owned by the plaintiff and allegedly wrongfully taken and detained by the defendant, and damages for their detention, or damages for their conversion. Judgment for plaintiff, and defendant appeals.

Judgment affirmed. Terry, Gueltig & Powell, of Edwardsville, for appellant.

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

STONE, Presiding Justice.

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

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

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

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

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

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

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

The suit having been begun and some pleadings having been filed prior to January 1, 1934, the provisions of the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 125 et seq., in that regard are not applicable.

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

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

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

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

At common law a landlord had no lien upon any property of his tenant as security for the rent or for anything else. The tenant's property was his own, to do with as he pleased, subject to no incumbrance in favor of the landlord. The landlord at common law had the right to bring a distress proceeding against the tenant for rent and if he did he thereby acquired in effect a lien on the tenant's property for the past due rent. But until the distress proceedings were actually brought he had no right to detain the tenant's property. This has been changed somewhat in England by the statute of Anne (8th Anne, ch. 14), but, insofar as that statute changes the common law it is not in force in this State because, among other reasons, it is of a date later than the...