Yarc v. American Hospital Supply Corp.

• Decision Date: 21 February 1974
• Docket Number: No. 72--141,72--141
• Citation: 17 Ill.App.3d 667,307 N.E.2d 749
• Parties: Edward J. YARC, Plaintiff-Appellant, v. AMERICAN HOSPITAL SUPPLY CORPORATION, an Illinois corporation, and B. F. Brown Company, an Illinois corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 749

307 N.E.2d 749

17 Ill.App.3d 667

Edward J. YARC, Plaintiff-Appellant, v. AMERICAN HOSPITAL SUPPLY CORPORATION, an Illinois corporation, and B. F. Brown Company, an Illinois corporation, Defendants-Appellees.

No. 72--141.

Appellate Court of Illinois, Second District.

Feb. 21, 1974.

Norman Crawford, Chicago, George H. White, Park Ridge, for plaintiff-appellant.

James V. DeMarco, Winston & Strawn, Price, Cushman, Keck & Mahin, Dennis M. Wilson, Chicago, for defendant-appellee.

GUILD, Justice.

An order was entered in the Lake County Circuit Court on February 10, 1972, dismissing plaintiff Edward J. Yarc's second amended complaint with prejudice, and finding judgment in favor of defendants American Hospital Supply Corporation (hereafter, American) and B. F. Brown Company (hereafter, Brown). The dispositive issue presented in this appeal is whether the second amended complaint contained sufficient averments of fact to allege the creation of a hold over tenancy between Yarc and defendants American and Brown.

Plaintiff's second amended complaint is based, in theory, on breach of a hold-over tenancy that allegedly arose between himself and defendants American and Brown upon the expiration of a written one year farm lease on February 28, 1968. This lease was entered into between plaintiff, as lessee, and Brown, as lessor, on March 1, 1967; and it expressly provided that plaintiff would yield up possession of the premises, without further demand or notice, upon expiration of the lease term. Prior to the expiration of the lease, however, Brown sold and conveyed the property to American. Plaintiff admitted in his second amended complaint that he was notified of the sale, that American assumed ownership of the property and that he remitted his annual rental payment to American.

Prior and subsequent to the termination of the aforementioned lease, plaintiff and American negotiated to enter into another one year lease. However, by late spring of 1968 it became apparent that plaintiff and American could not reach an agreement on a new lease; and soon thereafter plaintiff quit the premises and filed this action.

In support of his allegation that a hold over tenancy was created between himself and defendants American and Brown, plaintiff states in his second amended complaint, that on February 28, 1968 the '. . . Defendants Acquiesced in the farming activities by the Plaintiff and Elected to permit the Plaintiff to remain on the demised premises. . . .' (Emphasis added).

Plaintiff's initial contention is that the trial judge did not limit his consideration to the second amended complaint alone when he determined that it was insufficient. Plaintiff argues that in arriving at his conclusion, the trial judge also considered several affidavits of Yarc and American which were filed in conjunction with a motion by Yarc for partial summary judgment.

We agree with plaintiff that a motion to dismiss relates only to the sufficiency of the complaint, and that the trial judge should confine his inquiry solely to the allegations contained in the complaint when determining its sufficiency. (Arthur Rubloff & Co. v. Leaf (1952), 347 Ill.App. 191, 106 N.E.2d 735). The order here appealed from, however, along with the remainder of the record, is absent any indication that the trial judge violated this established principle. Therefore, there is no merit to plaintiff's contention inasmuch as he cannot supplement the record before us by unsupported statements in his brief. In Matter of Annexation of Certain Territory to City of Darien, (1973, 16 Ill.App.3d 140, 304 N.E.2d 769, Second District); County Board of School Trustees v. Bendt (1961), 30 Ill.App.2d 329, 174 N.E.2d 404.

Directing our consideration to the question of the sufficiency of the second amended complaint, we note the mandate contained in Section 33 of the Illinois Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, par. 33), that pleadings should be construed liberally with a view toward determining controversies on their merits; thus effectuating substantial justice between litigants. (E.g., Coffey v. Mac Kay (1972), 2 Ill.App.3d 802, 277 N.E.2d 748).

The second amended complaint, however, is replete with the conclusion-like statements 'acquiesced' and 'elected', as set forth above. The pleadings are devoid of any necessary facts which would support the allegation of the creation of a hold over tenancy. The inadequacy of plaintiff's second amended complaint, therefore, lies not in the theory of his cause of action, but in the absence of any factual allegations in support of that theory. Therefore, we conclude as did the court in Parsons v. Kuhne-Simmons Co. (1966), 76 Ill.App.2d 121, 221 N.E.2d 168, 170:

'We are aware that we must give the complaint a liberal construction. We are disposed to reach the substantive merits of litigation rather than procedural technicalities. Fatal deficiencies, however, cannot be supplied by liberal construction. We can only conclude that the absence of a factual basis in the complaint for the requested relief must be taken as and for the fact that no such basis, in fact, exists. If so, it would have been alleged.' (Emphasis added).

Although there are instances where the difference between permissible factual statements and impermissible conclusions is not easily distinguishable, such is not the case here. (See Herman v. Prudence Mutual Casualty Company (1969), 41 Ill.2d 468, 244 N.E.2d 809). Nevertheless, there is another reason which we deem noteworthy for holding that plaintiff's second amended complaint is insufficient to state a cause of action against American and Brown.

Generally, the trial judge should concern himself solely with the contents of the amended complaint when determining its sufficiency. This is so because an amendment which is complete in itself and does not refer to or adopt the prior unverified pleading, ordinarily supersedes the prior pleading. The prior unverified pleading then ceases to be part of the record since it is, in effect, abandoned or withdrawn. (E.g., Louis v. Barenfanger (1967), 81 Ill.App.2d 104, 226 N.E.2d 85, 88, aff'd 39 Ill.2d 445, 236 N.E.2d 724 (1968); Bowman v. County of Lake (1963), 29 Ill.2d 268, 193 N.E.2d 833, 835; Precision Extrusions Inc. v. Stewart (1962), 36 Ill.App.2d 30, 183 N.E.2d 547, 556; W. P. Iverson & Co. v. Dunham Manufacturing Company (1958), 18 Ill.App.2d 404, 152 N.E.2d 615, 625). In such a case, admissions of a party in the unverified original pleading may only be used as evidentiary admissions, rather than judicial admissions. Precision Extrusions Inc., supra.

The case before us, however, is illustrative of an exception to these general rules of pleading and evidence. Where the original pleading is Verified it remains part of the record upon the filing of an amended pleading. (Burdin v. Jefferson Trust & Savings (1971), 133 Ill.App.2d 703, 269 N.E.2d 340; Shealy v. Schwerin (1942), 317 Ill.App. 375, 46 N.E.2d 184 (abstract); People ex rel, Nelson v. Central...