Kuzlik v. Kwasny

• Decision Date: 20 May 1943
• Docket Number: No. 26967.,26967.
• Citation: 383 Ill. 354,49 N.E.2d 212
• Parties: KUZLIK et al. v. KWASNY et al.
• Court: Illinois Supreme Court

383 Ill. 354

49 N.E.2d 212

KUZLIK et al.

v.KWASNY et al.

No. 26967.

Supreme Court of Illinois.

May 20, 1943.

Action by Michael Kuzlik and another against Ludwik Kwasny and others to establish a constructive trust. From a decree for plaintiffs, defendants appeal.

Affirmed.Appeal from Circuit Court, Cook County; Benjamin P. Epstein, judge.

Lawrence A. Jacobson, of Chicago (Louis Hershman, of Chicago, of counsel), for appellants.

Wachowski & Wachowski, of Chicago (Casimir R. Wachowski, of Chicago, of counsel), for appellees.

WILSON, Justice.

Plaintiffs, Michael Kuzlik and Maryanna Kuzlik, filed their complaint in the circuit court of Cook county seeking to have a constructive trust declared in their favor in a three-story brick building in Chicago. Ludwik and Mathilda Kwasny, grantees of the premises under a deed from John Klis, were made defendants. They filed their answer, denying the material allegations of the complaint. The cause was referred to a master in chancery, who heard the evidence and recommended the entry of a decree granting the relief sought. Exceptions to his report were overruled by the chancellor, and a decree was entered finding the equities to be with plaintiffs and against defendants. The decree further directed an accounting between the parties for the purpose of determining the sum required to be paid by plaintiffs for their deed. The cause is here on appeal, a freehold being necessarily involved.

Plaintiffs, in 1923, were the owners of the premises, located at 5144 South Hermitage avenue, Chicago, subject to a mortgage held by John Klis and Rose Klis. Upon maturity of the mortgage indebtedness, September 24, 1938, as increased to $7,000, and extended, Kuzlik and his wife were unable to meet the principal, or any part of it. Pursuant to an agreement, they conveyed the premises in satisfaction of their indebtedness to John Klis and Rose Klis, as joint tenants. After delivery of the deed to John and Rose Klis, it was agreed that plaintiffs should continue to reside on the property, collect the rents, make necessary repairs and deliver the net proceeds to Klis's real estate broker, Lillian Beutler, for him. November 21, 1938, a short time after Klis obtained title to the property, his wife, Rose Klis, died. John Klis, then being sole owner of the real estate, suggested to Kuzlik the inconvenience of handling Chicago real estate, and expressed his desire to dispose of the property.

May 29, 1940, Klis wrote to Kuzlik stating that he was sick, and requesting him to send some rent money. Michael Kuzlik testified that early in June, 1940, he visited Klis in La Porte, Indiana, to negotiate for the repurchase of the property. Before departing, he turned over to Lillian Beutler certain rents from the building and obtained from her a check dated June 1, 1940, in the amount of $29.75, payable to the order of John Klis. He arrived in La Porte June 3, 1940, and, according to his testimony, went to the place of business of defendant, Ludwik Kwasny, informed him and his wife of his desire to reacquire the premises, and sought their aid and assistance in inducing Klis, the owner, to resell the property to him. For their efforts in assisting him in regaining the property, Kuzlik testified he offered defendant, Ludwik Kwasny, the sum of $25 whereupon Kwasny stated, ‘I will help you, and it will be boughten for four thousand dollars.’ Kuzlik further testified that after this discussion Kwasny directed his son to summon John Klis to Kwasny's tavern; that he delivered to Klis the check for $29.75 which was then cashed by Kwasny; that Kuzlik and Klis discussed the purchase of the property, and that Klis set a figure of $4,500; that thereupon defendant, Ludwik Kwasny, urged Klis to resell the property to Kuzlik for $4,000, to which proposal Klis agreed, and Klis and Kuzlik shook hands in approval of the bargain. Kuzlik testified further that he returned to Chicago the next day to make arrangements to raise the purchase money, and that he subsequently did arrange a sufficient loan. The master found that Kuzlik had always been ready, willing and able to produce the $4,000 necessary to repurchase the property. Uncontroverted testimony shows that Kwasny did not assist Kuzlik in purchasing the property from Klis, but, instead, purchased the property for himself.

Kuzlik's visit to La Porte around June 3, 1940, was denied specifically by Kwasny and his wife, both of whom testified they did not see or talk to Kuzlik at any time after Mrs. Klis's funeral, in November, 1938. They denied the agency or the offer of Kuzlik to pay $25 for their assistance. Both also denied cashing the $29.75 check for Klis. Upon being confronted with the cancelled check, Kwasny admitted his indorsement of it. Kwasny further testified that he first talked to Klis about buying the property for $4,000 three weeks before Klis received the cash from him for it. The evidence shows Klis received his first cash payment from Kwasny June 24, 1940. This would place the date of Kwasny's conversation about June 3, 1940. Under cross-examination, Mathilda Kwasny likewise admitted Kuzlik was in La Porte in June, 1940, and that she saw him and Klis in her husband's tavern. She further admitted cashing the check for Klis.

When he testified for defendants at the original hearing before the master, John Klis denied that he met Kuzlik in Kwasny's place of business in June, 1940, or at any other time. However, when shown the cancelled check for $29.75, he, too, admitted its receipt from Kuzlik in La Porte. He further corroborated Kuzlik, stating that Kwasny's son came for him and that the check was given to him in Kwasny's residence. He maintained that he then said nothing to Kuzlik about the property. He admitted writing to Kuzlik May 29, 1940, and, again, on June 19, 1940. Subsequent to his testimony at the original hearing, Klis signed an affidavit, or statement, for plaintiffs in which he charged that Ludwik Kwasny had prevailed upon him to give perjured testimony on the first hearing. The matter was re-referred to the master and Klis testified substantiallyas set forth in his statement, admitting his previous perjury, and corroborating Kuzlik's version of what occurred June 3, 1940, and the agreement then reached to sell to Kuzlik for $4,000. Kwasny did not testify in denial of this testimony by Klis. The evidence further shows that about a week after his visit to La Porte, Kuzlik wrote to Klis stating that if he came to Chicago with his title papers he would receive his money. Klis testified he showed this letter to Kwasny who stated, ‘I will buy this house from you. * * * Don't take your title papers to Chicago, because Mr. Kuzlik will take your papers and won't give you the four thousand dollars. * * * You better sell me the property * * * and I will pay you $4000.’ Thereupon, John Klis, without notification to Kuzlik, sold the property to defendants for the price specified. Shortly thereafter, defendants and John Klis visited plaintiffs in Chicago. Kwasny announced that he had purchased the property from Klis, and that if plaintiffs desired to reacquire the property they would have to purchase it from him. According to the testimony, Michael Kuzlik remonstrated with defendants as to their conduct in so purchasing the property, after agreeing to assist him in procuring it. Defendants thereafter instituted forcible-detainer proceedings in the municipal court of Chicago to dispossess plaintiffs from the premises, and plaintiffs, as part of their relief in the complaint filed in this proceeding, sought an injunction restraining prosecution of the forcible-detainer action.

The evidence also showed that Michael Kuzlik and Ludwik Kwasny were acquaintances since their emigration from the same town in Poland. From the testimony of Kuzlik, it appears that on several occasions when they had business dealings he consulted with Kwasny; that he so consulted Kwasny pertaining to a grocery store previously purchased by him, and with respect to his original purchase of the premises herein involved; that he had known Kwasny since boyhood, and that every time Kwasny came to Chicago or he, Kuzlik, went to La Porte, they would discuss business matters. In connection with the original purchase, in 1923, of the real estate, Kwasny loaned to plaintiffs $1,000 in cash, without security. Several years later, when the mortgage was refinanced, Kuzlik executed and delivered to Kwasny a judgment note for $1,000, evidencing the loan previously made. When...