Fortune v. English

• Decision Date: 11 April 1907
• Citation: 80 N.E. 781,226 Ill. 262
• Parties: FORTUNE v. ENGLISH.
• Court: Illinois Supreme Court

226 Ill. 262

80 N.E. 781

FORTUNE

v.ENGLISH.

Supreme Court of Illinois.

Feb. 21, 1907.

Rehearing Denied April 11, 1907.

Appeal from Appellate Court, First District.

Action by Peter Fortune against William J. English. From a judgment of the Appellate Court, affirming a judgment for defendant, plaintiff appeals. Affirmed.

Alexander Sullivan and Frank L. Kriete (Hiram T. Gilbert and Carroll C. Boggs, of counsel), for appellant.

Kraus, Alschuler & Holden, for appellee.

CARTWRIGHT, J.

This is an action on the case, brought by appellant in the circuit court of Cook county, to recover damages alleged to have resulted from negligence of the appellee in the performance of his duties as attorney at law under an employment as such by the appellant. The declaration alleged, in substance, that the plaintiff, having contracted to purchase from Emma A. Leahy certain real estate in Cook county in fee simple and unincumbered for $22,000, employed the defendant, as an attorney at law, to examine the title to said real estate, and, if it proved to be a good title in fee simple and unincumbered, to cause such title to be conveyed to plaintiff, but the defendant neglected his duty in that behalf, and on December 2, 1889, negligently and wrongfully caused and procured plaintiff to pay the purchase price for said real estate and accept a deed therefor, when in fact the real estate was subject to incumbrances, secured by trust deed, amounting to $12,000; that the holders of the said incumbrances thereafter commenced foreclosure proceedings, and, notwithstanding defendant exercised all due care and diligence in the defense thereof, he was compelled to pay the incumbrances, with interest, amounting to $16,522.70, and costs and expenses amounting to $5,600. There was much pleading which it is not necessary to state. The declaration finally consisted of original counts 1, 2, 3, and 4, amended additional counts 5, 6, 7, and 8, and additional counts 9 and 10. Demurrers weresustained to the amended additional counts 5, 6, 7, and 8, and plaintiff elected to stand by them. To the other counts pleas were filed of not guilty, the statute of limitations of five years, and the statute of limitations of ten years. Replications to the pleas of the statute of limitations were filed, and demurrers were sustained thereto, whereupon the plaintiff elected to abide by his replications, and there was a final judgment for the defendant. Plaintiff appealed to the Appellate Court for the First District, and the branch of that court affirmed the judgment.

A decision as to the sufficiency of the amended fourth replication of the plaintiff to the second plea of the defendant to counts 1, 2, 3, and 4 of the declaration will be decisive of the case. That replication was intended to set up a fraudulent concealment of the cause of action by the defendantunder section 22, c. 83, Rev. St. 1874, concerning limitations, which is as follows: ‘If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.’ Under that section, if the defendant fraudulently concealed the cause of action alleged in the declaration from the knowledge of the plaintiff, and the plaintiff discovered the same within five years before the action was commenced, the statute of limitations would not apply. To meet the requirement of the statute in a case like this, where the original basis of the action is not a fraud, there must be something of an affirmative character designed to prevent, and which does prevent, a discovery of the cause of action. Mere silence by a person liable to an action is not concealment of the cause of action; but such concealment must consist of affirmative acts or representations. Wood v. Williams, 142 Ill. 269, 31 N. E. 681,34 Am. St. Rep. 79;Parmelee v. Price, 208 Ill. 544, 70 N. E. 725; 19 Am. & Eng. Ency. of Law (2d Ed.) 253.

The facts averred in the replication under consideration are that plaintiff was unlearned in the law and unable to determine for himself the...