Meeker v. Summers

• Decision Date: 28 March 1979
• Docket Number: No. 78-422,78-422
• Citation: 70 Ill.App.3d 528,388 N.E.2d 920,26 Ill.Dec. 919
• Parties: , 26 Ill.Dec. 919 Don MEEKER, Plaintiff-Appellant, v. Glen SUMMERS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 920

388 N.E.2d 920

70 Ill.App.3d 528, 26 Ill.Dec. 919

Don MEEKER, Plaintiff-Appellant, v. Glen SUMMERS, Defendant-Appellee.

No. 78-422.

Appellate Court of Illinois, Fifth District.

March 28, 1979.

Rehearing Denied May 1, 1979.

William E. Aulgur, Eldorado, for plaintiff-appellant.

Harris & Lambert, Marion, for defendant-appellee.

KARNS, Justice:

Plaintiff Don Meeker appeals from the judgment of the Circuit Court of Franklin County granting defendant Glen Summers' motion to dismiss plaintiff's complaint in replevin.

In January of 1965, plaintiff leased a Meeker deluxe drying bin used to dry and store grain to one LeRoy Hines by written agreement. As provided in the agreement, the duration of the lease was to be 5 years with the rent to be paid in 5 annual installments. The first payment was to be made on or before October, 1965. After Hines took possession, he paid the first rental two months late and thereafter stopped making additional payments. Paragraph 11 of the lease provides:

"In the event of any default in making any rental payment hereunder, * * * then all remaining rental payments hereunder shall at the Lessor's option become due and payable forthwith.

In the event of such breach, the Lessee agrees to make available to the Lessor immediately upon demand the leased property in as good condition as when received, ordinary wear and tear alone excepted. The Lessor is hereby authorized to enter any premises where the leased property is located and take possession of and remove it to its own premises without any liability to the Lessee."

In its answers to defendant's interrogatories, plaintiff admitted that Hines defaulted in his payments under the lease on November 1, 1965.

In 1973, Hines, still in possession of the grain bin, sold it to defendant, who paid full value without notice of plaintiff's alleged interest. Plaintiff's first affirmative step to recover the bin occurred in 1974 when his attorney attended a meeting of creditors in the bankruptcy proceedings involving Hines. Upon questioning Hines, the attorney learned that defendant had acquired the bin. After making an unsuccessful attempt to recover the item in 1975, plaintiff initiated this present action on June 14, 1976.

Section 15 of the Limitations Act (Ill.Rev.Stat.1975, ch. 83, par. 16) provides that an action to recover the possession of personal property or damages for the detention or conversion thereof shall be commenced within 5 years after the cause of action accrues. In general, a cause of action accrues when facts exist which authorize one party to maintain an action against another. (Aetna Life and Casualty Co. v. Sal E. Lobianco and Son Co., Inc., 43 Ill.App.3d 765, 2 Ill.Dec. 454, 357 N.E.2d 621 (2d Dist.1976), Aff'd 69 Ill.2d 126, 12 Ill.Dec. 893, 370 N.E.2d 804 (1977).) If a former owner has a right to recover personal property but fails to initiate a replevin action within 5 years after that right accrues, the statute of limitations bars any later action. (Isham v. Cudlip, 33 Ill.App.2d 254, 179 N.E.2d 25 (2d Dist.1962).)

In the present case, plaintiff did not initiate these proceedings within the applicable time period. Under the terms of the written lease, plaintiff was authorized to enter the lessee's premises and take possession of and remove the grain bin upon a breach of the agreement. A careful reading of the rental agreement reveals that such a breach occurred when the lessee failed to make the first payment on time. Plaintiff, having admitted that a default occurred on November 1, 1965, therefore had by the express language of the written agreement the right to enter the property belonging to Hines and remove the bin. As plaintiff then had the immediate right to take possession of the grain bin and maintain an action to recover such property, it is clear that plaintiff's cause of action accrued on the date of default thereby invoking the running of the 5 year statute of limitations.

In the analogous case of Isham v. Cudlip, the plaintiff and her husband entered into an installment contract with a Mr. and Mrs. William Cudlip to purchase a home. The home apparently was considered personal property by the parties and was treated as such at trial. The written agreement, dated April 28, 1917, provided that " '(u)pon default being made in any installment this contract shall cease and determine and the lesser may immediately take possession of said property * * *.' " Plaintiff and her husband stopped making payments on the agreement after two or three years but continued to reside in the home. In 1960, defendants, the daughter-in-law and granddaughter of William Cudlip, took possession of the property without plaintiff's permission. Thereafter plaintiff brought an action in replevin to recover the property. The appellate court in affirming the judgment in favor of plaintiff, concluded that defendants no longer had the right to demand the return of the home. It stated:

"(T)here necessarily then occurred at that time, about 1919, a default in the installment payments of the purchase price and upon such default, by the express terms of the agreement, the contract ceased and determined and William Cudlip, the seller, might...