Kuhn v. Eppstein

• Decision Date: 17 December 1907
• Citation: Kuhn v. Eppstein, 231 Ill. 314, 83 N.E. 233 (Ill. 1907)
• Parties: KUHN v. EPPSTEIN et al.
• Court: Illinois Supreme Court

231 Ill. 314

83 N.E. 233

KUHN

v.EPPSTEIN et al.

Supreme Court of Illinois.

Dec. 17, 1907.

Appeal from Circuit Court, Champaign County; Solon Philbrick, Judge.

Suit by Isaac Kuhn against Samuel Eppstein and another. From a decree for complainant, defendants appeal. Transferred to Appellate Court.

William E. O'Neill and A. D. Mulliken, for appellants.

Ray & Dobbins, for appellee.

This case has been in this court twice heretofore (Kuhn v. Eppstein, 219 Ill. 154, 76 N. E. 145, 2 L. R. A. [M. S.] 884; Eppstein v. Kuhn, 225 Ill. 115, 80 N. E. 80), and the facts need not be here repeated. The last time the case was here this court said (page 125): ‘That part of the decree, therefore, holding that appellee is entitled to a specific performance, will be affirmed, and that part of it holding that McDonnell had no interest in the premises, except that of possession, * * * will be reversed and the cause remanded, with directions to the circuit court to hear further testimony of the parties, or either of them, as to the difference in the value of the premises, if any, resulting from the incumbrance by virtue of the lease to McDonnell and the deterioration in the market value caused by the fire. * * * The amount of such diminution is to be deducted from the $7,000, and a conveyance ordered made to appellee upon payment of the balance.’After the case was redocketed in the lower court, the matter was referred to a special master to take evidence on the question of damages, and after his report the final decree was entered, finding that ‘the market value of the premises * * * have been damaged in the amount of $3,918, and that said sum shall be deducted from the balance of the contract price of $7,000, leaving a balance of $3,082 due the defendants; * * * that upon the payment of said sum of $3,082 by * * * Isaac Kuhn to Samuel Eppstein and William D. Eppstein * * * the Trevett-Mattis Banking Company shall deliver to * * * Isaac Kuhn the deed for the said premises in controversy [describing them] so deposited and in possession of the Trevett-Mattis Banking Company; that upon the failure or refusal * * * to deliver the said deed * * * Frank H. Boggs, as special master herein, is hereby ordered and directed to make, execute, and deliver to * * * Isaac Kuhn a warranty deed from the said William D. Eppstein and Samuel Eppstein, in statutory form,’ conveying to him all right, title, and interest that the said Samuel Eppstein, William D. Eppstein, or either of them, had in the aforesaid premises, and thereupon ‘the clerk of this court is ordered and directed to pay out of the sum of $3,082’ the costs. All that then remains shall be paid by the clerk to the said Samuel and William D. Eppstein. From this decree an appeal was prayed to this court.

CARTER, J. (after stating the facts as above).

The motion by the appellee to dismiss the case on the ground that no freehold is involved was taken with the case.

The chief question raised by the assignment of errors is as to the amount of damages allowed by the decree. All other questions raised are incidental and subsidiary to this main question. The briefs of both parties show that this is the only point in dispute. The last opinion of this court (in Eppstein v. Kuhn, supra) found, in terms, that the former decree of the court requiring specific performance was proper. The trial court did not attempt, and had no ritht, to review that question. It was res judicata under the former decision. Hough v. Harvey, 84 Ill. 308;Washburn & Moen Manf. Co. v. Wire Fence Co., 119 Ill. 30, 6 N. E. 191;Sanders v. Peck, 131 Ill. 407, 25 N. E. 508;West v. Douglas, 145 Ill. 164, 34 N. E. 141;Windett v....