Lesher v. United States Fid. & Guar. Co.

• Decision Date: 23 April 1909
• Citation: 88 N.E. 208,239 Ill. 502
• Court: Illinois Supreme Court
• Parties: LESHER v. UNITED STATES FIDELITY & GUARANTY CO.

239 Ill. 502

88 N.E. 208

LESHER

v.UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Illinois.

April 23, 1909.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Action by Jacob H. Lesher against the United States Fidelity & Guaranty Company. Judgment for defendant affirmed by the Appellate Court, and plaintiff appeals. Affirmed.Wilson, Moore & McIlvaine and Edwin White Moore, for appellant.

Appellate Court for the First District affirming

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in favor of appellee, defendant below, against appellant, plaintiff below, for costs.

Appellant employed one Henry W. Schleuter to erect a building. The contract provided that Schleuter would complete the building in accordance with the specifications on or before December 15, 1902, and that, if he failed to do so, he would become liable to appellant in the sum of $1,000 per day after December 15, 1902, that the work remained incomplete as liquidated damages. For the performance of his contract Schleuter gave appellant a bond in the sum of $50,000, with the appellee, the United States Fidelity & Guaranty Company, as his surety. The bond contained the usual conditions in such cases, and a provision as follows: ‘Third, that in no event shall the surety be liable for a greater sum than the penalty of this bond, or subject to any suit, action or other proceeding thereon that is instituted later than the 15th day of March, A. D. 1903.’ Suit was brought November 25, 1903, against both Schleuter and the appellee, but was subsequently dismissed as to the former. The amended declaration, after setting out the building contract, to secure the performance of which the bond was given, assigned breaches of the conditions of the bond resulting from the failure to complete the building as agreed upon and alleged damages sustained by plaintiff in the sum of $10,000. The declaration concludes as follows: ‘And plaintiff further shows that the plaintiff on his part complied with all and singular the provisions and requirements of the said writing obligatory on his part to be kept and performed, excepting only that this present action by the plaintiff against the said defendant was not brought on or prior to March 15, 1903, and in respect to said provision or requirement of the said writing obligatory the plaintiff avers that the said building, which should by the terms of said contract have been completed by December 15, 1902, was not, in fact, completed for a long time, to wit, for a period of 11 months thereafter, and that on March 15, 1903, the said building was in an uncompleted state, and the said Schleuter was still engaged in the construction thereof and in laboring in and about the same with numerous employés and subcontractors, and that it was not known to the plaintiff at the said date, and could not have been known at the said time nor until long afterwards, to wit, 11 months, what injury, loss, or damage, if any, would be sustained by the plaintiff by reason of said breach of contract, nor whether the said Schleuter would himself indemnify and save harmless the said plaintiff from any pecuniary loss resulting from such breach of the terms, covenants, and conditions of said contract, and that the said loss or damage could not have been known to the plaintiff until shortly before the time when he brought this present action, nor could the plaintiff, until the last work done or caused to be done by the said Schleuter upon the said building had been completed, have known or in any way ascertained the amount which the defendant herein ought to pay the plaintiff by virtue of the covenants and provisions of the said instrument, nor could plaintiff by any means know or ascertain that the defendant herein would decline or refuse to make good without suit the amount of such loss or damage when ascertained, by reason whereof plaintiff avers that the said provision of said writing obligatory that action thereon should be brought by March 15, 1903, was unreasonable and void, and that plaintiff was not in any way bound thereby. Plaintiff therefore avers the fact to be that by reason of the defaults and breaches of contract above herein specified the plaintiff has suffered a pecuniary loss, amounting in all to, to wit, the sum of $50,000 above demanded, yet the defendant, although often requested, has not paid to the plaintiff the said sum of money, or any part thereof, but refuses to do so, to the damage of the plaintiff in the sum of $50,000, and therefore he brings his suit.’

Appellee filed a general and special demurrer to the declaration. The court overruled the demurrer, and thereafter the appellee filed 13 pleas. The thirteenth plea was as follows: ‘And for a further plea in this behalf the defendant says the plaintiff ought not to have his aforesaid action against it, the defendant, because it says that the plaintiff did not commence his said action on or before the 15th day of March, A. D. 1903, but, on the contrary thereof, commenced his said action on or about the 27th day of November, 1903, contrary to the terms and conditions of the said writing obligatory; and this the defendant is ready to verify, wherefore it prays judgment if the plaintiff ought to have his aforesaid action,’ etc. To this plea the appellant demurred, setting up as causes of his demurrer ‘(11) the said thirteenth plea is not a sufficient plea to the said declaration, since it sets up and relies upon matters which are defenses of law alone; (12) the said thirteenth plea is not sufficient as a plea to the said declaration, since it sets up matters and things already adjudged and determined against the defendant by its demurrer to the plaintiff's declaration.’ This demurrer was overruled, and, the appellant electing to abide by the demurrer, the court rendered judgment in favor of appellee for costs.

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

Appellant contends that by pleading to the declaration after the demurrer was overruled the appellee waived all objection to the declaration, that the sufficiency of the declaration was conclusively determined by the judgment overruling the demurrer to it, and that the question of the limitation in the contract could not again be raised by plea. In actions at law it is not in accordance with the rules of pleading for the plaintiff to anticipate and attempt to answer or avoid a possible defense that might be interposed by plea. He is only required to state his cause of complaint, and anything

Judah, Willard, Wolf & Reichmann, for appellee.

cause of action is barred by limitation, whether the limitation is by contract or by act of the Legislature, is a defense which may or may not be interposed.

Although it may appear on the face of the declaration that the cause of action is barred if that defense is interposed, yet at law, if it is not relied upon as a defense by pleading it specially, it cannot be taken advantage of by the defendant, the plaintiff not being required to negative the defense in his declaration, as is the rule in chancery.

If he does so, such allegations, not being necessary to the statement of his cause of action, are to be treated as surplusage, but as a general rule the declaration will not on that account be obnoxious to demurrer.

1 Chitty's Pl. 230; Stephen's Pl. 422; Higgins v. Halligan, 46 Ill. 173;Burnap v. Wight, 14 Ill. 301.

In Gunton v. Hughes, 181 Ill. 132, 54 N. E. 895, and Wall v. Chesapeake & Ohio Railroad Co., 200 Ill. 66, 65 N. E. 632, this court held that a plaintiff could not avail himself of matter in avoidance of the statute of limitations by pleading such matter in his declaration before the statute had been pleaded as a bar. None of the special grounds of demurrer mention or relate to the allegations of matter set up in avoidance of the limitation.

We do not think the judgment overruling the demurrer to the declaration was an adjudication that the allegations in the declaration were a good and sufficient answer to a defense that the cause of action was barred by limitation under the contract. The proper way to have presented the sufficiency of the matter relied on in avoidance would have been by replication to the plea setting up that defense. But we are of opinion that the allegations relied on in the declaration, if they had been set up in a replication to the plea, would not have been sufficient. This is the question to which the briefs of both sides are mainly devoted.

Appellant contends...