Cottrell v. Gerson

• Decision Date: 05 April 1939
• Docket Number: No. 24901.,24901.
• Citation: 371 Ill. 174,20 N.E.2d 74
• Parties: COTTRELL v. GERSON.
• Court: Illinois Supreme Court

371 Ill. 174

20 N.E.2d 74

COTTRELL

v.GERSON.

No. 24901.

Supreme Court of Illinois.

Feb. 15, 1939.

Rehearing Denied April 5, 1939.

Appeal from Appellate Court, Fourth District, on appeal from the Circuit Court, Madison County; R. W. Griffith, Judge.

Replevin suit by J. L. Cottrell against Albert W. Gerson to recover possession of barber shop furniture and fixtures with damages for their retention or conversion. From a judgment of the Appellate Court, 296 Ill.App. 412, 16 N.E.2d 529, affirming a judgment for plaintiff, which judgment was entered upon a remittitur, defendant appeals on a certificate of importance.

Judgment affirmed.Terry, Gueltig & Powell, of Edwardsville, and Brown, Hay & Stephens, of Springfield, for appellant.

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

JONES, Justice.

J. L. Cottrell instituted a replevin suit in the circuit court of Madison county against Albert W. Gerson, his landlord, to recover possession of certain barber shop furniture and fixtures, with damages for their retention or conversion. A verdict finding plaintiff was entitled to possession of the property and assessing damages for detention at $1,640, was returned. Upon a remittitur reducing the damages to $1,140, judgment was entered on the verdict and affirmed by the Appellate Court for the Fourth District. The cause is here by an appeal from the judgment of the Appellate Court on a certificate of importance.

Under a written lease for one year beginning July 20, 1931, plaintiff occupied with his barber shop a portion of a building owned by defendant in Woodriver. The rent for the term was $600, payable in monthly installments of $50 in advance on the fifteenth day of each month. Plaintiff paid his rent on the twentieth of each month up to and including December 20, 1931. Thereafter, he became delinquent and made no further payment up to the expiration of the term, leaving $300 unpaid. On July 20, 1932, he and his wife executed a judgment note to defendant for that amount, due one day after date, without interest. About this time, plaintiff told defendant he could not pay $50 a month for the premises and it was agreed that he should continue in possession at a rental of $35 per month, payable in advance each month. Plaintiff continued in possession until December 24, 1932. Act that time he owed $10 of the rent due in November and had not paid the $35 due in December. From the beginning of the new arrangement none of the rent was paid in advance, and defendant permitted it to be paid in various amounts after the due dates.

On December 24, defendant called the plaintiff into his office next door and handed him a written demand for the payment of $342, threatening distraint unless the plaintiff paid the amount immediately. Plaintiff said he owed defendant $300 for a note but only owed $45 for rent. A constable with a distress warrant, signed by defendant, was present in the room. After some discussion, plaintiff turned the key of the barber shop over to the defendantand the distress warrant was not served. Plaintiff then went back to the barber shop. J. H. Hubbard, a barber working there, then went into defendant's office and defendant placed him in charge of the barber shop as tenant. On Hubbard's return to the barber shop, he told plaintiff he could work there as a barber on a seventy per cent basis, furnishing the gas and light. Plaintiff told Hubbard and defendant he would not stand for it and went to see his attorney. Shortly thereafter, he returned to the shop and worked the remainder of the day, making arrangements with defendant to meet him that evening about a settlement between them. That evening plaintiff tendered defendant $14.80, as being the $10 balance unpaid for the month ending December 20, and $4.80 as rent accrued from December 20 to December 24, and offered to move out. The tender was refused. Plaintiff then tendered $314.80 as in full of his debt, and served a witten demand on defendant for his furniture and fixtures. This tender and the demand for the furniture and fixtures were also refused. Plaintiff returned to the shop and after some verbal altercation about his leaving, he left and did not thereafter return.

Shortly after these occurrences, defendant mailed to plaintiff and posted a notice that the barber shop furniture, fixtures and supplies would be sold at public sale on January 16, 1933. The basis of the notice is an alleged lien in the written lease to secure the payment of the rent, and a default in payment. On January 14, plaintiff again tendered defendant $314.80 in full payment of the debt and it was again refused, defendant claiming plaintiff owed him $345. After the last tender plaintiff turned the $314.80 over to his attorney who deposited it in a bank to be available if defendant would accept it. Defendant was not advised of the deposit. The money remained in the bank at the time of the trial. On January 16, plaintiff filed an affidavit for replevin of the goods and a writ was issued. Defendant filed with the sheriff a forthcoming bond and the advertised sale was not held. When the suit was instituted, plaintiff deposited a check for $14.80, and another covering accrued costs, with the clerk of the court.

The pleadings are voluminous. So far as necessary they will be hereinafter noticed. The trial occurred at the June term, 1936. At the time of the trial, defendant had been in possession of the barber shop and plaintiff's equipment and had received the income therefrom ever since he turned it over to Hubbard on December 24, 1932, a period of forty-one months. Hubbard first paid defendant $10 per week rental and later operated the shop on a commission basis.

Defendant testified the agreement was that plaintiff was to turn the property over to him as security for the payment of the rent; that Hubbard was to be put in charge and plaintiff was to work in there the same as before; that when the rent was paid the property was to be turned back to plaintiff, and that, to avoid publicity, nothing was to be said about it.

Plaintiff testified that when he was called into defendant's office defendant told him he understood he was going to move out and beat him, and demanded immediate payment of the rent; that he told defendant he had no intention of moving, but defendant would not accept his statement and the key was turned over merely to guarantee the furniture would not be moved out. He testified the agreement was that he was to continue to operate the shop, and denied it was agreed Hubbard was to be put in charge as tenant, or that anything was said about the equipment standing good for the rent.

The first count of the declaration avers the taking of the goods and their unlawful detention. The second count, in trover, was withdrawn. The third count, in trespass on the case, avers an unlawful taking and detention. The fourth count avers a taking and an unlawful detention and use. Defendant's demurrer for misjoinder was overruled and he pleaded over. The pleas respectively traversed each count. Demurrers to plaintiff's replications were overruled and issues joined. Defendant insists the judgment must be reversed for misjoinder of counts in trespass on the case. The suit was instituted and pleadings filed before the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 125 et seq., went into effect. It is, therefore, governed by the provisions of the former Practice Act, Smith-Hurd Stats. c. 110 Appendix, § 1 et seq.

It has always been the rule in this State that if a party wishes to have the action of the court in overruling his demurrer reviewed, he must abide by his demurrer. By pleading over, he waives his demurrer and the right to assign error upon the ruling. He does not waive innate and substantial defects in the declaration which would render it insufficient to sustain the judgment, and the question whether it is so far defective may be considered on review. The question which could be thus presented was not so broad as those questions which could be raised on demurrer, for the reason that defects in pleading may be aided by the pleadings of the opposite party, or be cured by the statute on Amendments and Jeofails, or by intendment after verdict. Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N.E. 680. Section 6 of the statute on Amendments and Jeofails (Ill.Rev.Stat.1937, c. 7, § 6) provides, among other things, that a judgment upon a verdict shall not be arrested or reversed for any mispleading. In Chicago & Alton Railroad Co. v. Murphy, 198 Ill. 462, 64 N.E. 1011, the question of the sufficiency of a declaration because of a misjoinder of counts was raised by motion in arrest. We held that a misjoinder is a ‘mispleading’ within the meaning of the statute, and affirmed a judgment on the verdict for the plaintiff....