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Illinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.279) online

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the yirst :.ji8trict. Case lo. 354S7, affirmec said judgment on
remittitur I that in and by said admission he also admits that the
right to the possession of said property mentionoc' in s?iid contract^
Fnra^aph 2, 1b in defendants; that he is in ronfjful and tortious
possession of the samet chat »,ha <iUastion of the construction of said
contract has been adjudicated, finding the title and possession of
the property to be in defendants, and he la attempting to re-ll:lgate
in this proceeding what has already been litigated and finally deter-
mined by the Appellate Uourt, Gaee :»o. 35437, said judgment having
■become final when the complainant, after prosecuting his appeal to
the ppellate Court » further prosecuted the same to the -uprGme Court
where a petition for writ of certiorari was denied.

"(19) That this Court of ^quifc^ has no jurisdiotioa to


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enjcln the case I'lled by Arthur V. Goebel in the Circuit Court of
Cook vountyt Case ISOw B-240862p wherein said Goebel filed his
declaration against the complainant herein for damages for -in
alleged assault cociuitted by the complainant on him* A Court of
Butty would hare no jurisdiction to try an as.mult and battery
oaas which is a coroiuon law action* nor v ould it have any power to
restrain the prosecution of « tort action, nor hf's it power to
rsstrf in the defsndejnt from prosecuting a capias ad satiafaci enduia
issued by the ijuperior v'^iourt of Cook County, Case" FoV" 518 a03~»~ and
the only proper tribunal for determining; vJhether or not aaid capiaa
was properly isauod is the County Court of Cook County where an
action ie pending wherein the complainant is Ktwempting to obtain
his liberty under the Insolvent j>*ebtor8 Aot*

"(20) The element of losj^ of profits was not viithiii tlM
contemplation of the par ties at the tiate the contract was raadet >••
cause the title paasef? absolutely to the defendants.

*flliersfore» and tor divers other good causes of deinurrer
appearing in the said Second AmendPr! Bill of Complaint , these
defendants demur to said Second Amended Bill, and to all the tiattars
and things therein contained , and pray the judgment of this Honorablt
Court, whether they shall be compelled to make any further or other
answer to the said oecond .^aended Bill^ and they pray to be dismisBed
with their reasonable costs in thle behalf ausstained.* (Hera followfli
the Terif ioatlon.)

Coffiplaioant oonteads that the bill states a good cause •£

aotioa and that th« "general and special deisurrer" should have been

overruled* In our judgpnent the dlsmlseal of th© bill may be justifieA

upon a number of grounds* Coaj^lainant alleges the proceedings in

Goebel e t al » t. LlT«an> supra, in his bill. It appears from ear

opinion in that case that it was conceded that clause 13 ef tin

agreement was waived by the parties t that the defendants paid llfOCK)

as earnest money and the first payment of |2,500jt that they went into

possession of the premises on Peceateer 5* 19a9f and remained in

possession until May laf 1930; that eomplalnant took possession of

the premises, personal property and the business, on May 12, 1930,

and th&t he retained possession thereafter. In our opinion we saidt

"The (trial) court asked the d f endant to state under «hat
Clause of the contract he claimed the right to take possession of the
proper cy, to ^ifhich the def^idant answered that he bsiaed hie right to
enter and take possession of the property under clauys choree of the
contract. The court very properly rule<? that that clause gare the
defendant only the right to enter for the purposs of making an
examination or audit of the accounts and that it did not ^-ive the
defendant the right to enter and take posseseion of tha premises, ete#
1 he court, m passing upon the defendant's motion to direct a verdict
at the conclusion of the plaintiffs* case, properly held that if tha
rilhf ?f .^'f ?^* ^""^ Pl^^mtiffs ha,. breaJhSd fhe con^iLtrL'U So
right to obtain possession of the premises, etc. * * * At no time
uuring the trial did the defendant assert that the oentraet wa. «

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conditional sale contract. In this court, however, h® oontetids
that 'this ftgreement ataouiited to a "conditional sale" and therefor©
the lease of the pramiaes* tha etoek and the chattels were th«
property of the defendant and the Apai'tjaent house and xlotel
Association until fully paid for,' and th&.t after the plaintiffs
had derauited undsr the contract he s«srvQd & notice on them setting
up the default and demanding poaaeseion of the prenjises, that the
plaintiffs refuaerf to surrender poesoasion and that thereupon the
defendant had the right to take poisseasion of th« premises, etc.
Under the xulea we might well disregard the contention no'w raised
in this court that the agreement amounted to a conditional sale con-
tract. The defendant states, in tvipport of the inatant contention,
that the contract prOTidee only that the defendfmt 'has agreed to
sell and deliver unto the second parties, Goebel and achatz, hi a
lav lousiness,' etc., nvhereae it provides that the defendant 'do«0
hereby sell, transfer and convey unto said eecond party, - t the priott
of 1 12, 500 all oi the following,' which are -^lovda of present,
alssolute conveyanee"

Later in the opinion we hold that the contract "was aa absolute

contract ©f sale." We further held that

"The jury were fully warranted in finding that the
defendant intentionally snd deliberately took the It w into his own
hands and committed the trespass charged in the declaration* It
was an outrageous act and the jury were fully warranted in assessing
punitire damages against the defendant."

One of the principles ef law that sust !»• applied in deter*

mining the question l>efore ue is the followingt

"A demurrer does not admit all ©grt ions of fact which
have boen previously decided and are res judicata i even though they
are alleged contrary to the adjudication* ( Martin t« KcCallt 247
111. 484.) The hill shows clearly that sueh alleged matters hare
heen previously adjudicated contrary to the contentions of the
parties to this hill, and that the othar facts stated in this bill
contradiot such allegod statement of facte." ( eher t. Kemper,
320 111. 11, 21.) ^ '^

from the allegations of the hill and from our aforesaid
opinion it appears that eomplainant ha©ed his right to take poesessiea
of the premises and property under olause 3 of the contract, fhat
complainant, without warrant under the contract or the law, delih-
eratoly, intentionally and Illegally repossessed himself of the
suhject matter of the contract clearly appeare from the allegatiens
of the bill and from our aforesaid opinion. That complainant, hy
his conduct, rescinded and annulled the contract also appears fro«
the allegations of the bill and from our opinion. Complainant
concedes, in his reply brief, that after Kay 12, 1930, "the can-
oellation and reseiselon had become effectire and complainant was in

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poBaesBion thereafter." Uerertheleeoi coraplainaunt* s bill is based

upon the cpntract, and he seeks therein "to set off against the

olaims and demands of def eods^jats auch tjums as he is etiuitahiy entitled

to and which may be rightfully due him** imder the contract. In hie

bill he seeks to prevent the operation of the oapiaa ad eatisfaoiendtai

in Go ebe l et al. t. Livm&p ta supra > by asking for an accounting under

the on tract. This he eannot do* In City of Chicafo v. Ghio&ge T^Bj>,

Co« , 228 111* App* 579» decided by this branch of the eomrtf we eaid

(p* £>89)<

"It is said in 2 Black* s Hesciesion and Canoellation of
Centraete* see* 561* pp. 1321-29 *A person who is in a position
vhere he can either affirm or rescind a contract cannot do bothf
he cannot treat the contract as rescinded for the purpose of es-
caping obligations under it* and at the @[email protected] time treat it as BUb-
eisting for the purpose of claiming benefits » or for any reason
treat it as abrogated and as existing at the same time.*"

"She decree nay also be sustained upon the ground that

complainant is guilty of laches » and therefore should be denied

injunctiye or any other relief. On May 21* 1950 » the euit of Goebel

et ^ a j.^* T* Xipga nj supra^ was oozomenced. Complaizmnt now seeks to

hare enjoined the judgment entered therein. Our opinioQt upon th«

appeal, wr.a filed February 23 » 1932. Certiorari was denied by the

Supreme court ea June a3» 1932 (see 265 111* App* x1t)« the original

bill in the instant proceeding was filed in the July t«rm» 1932*

It appears frm the allegations of the second amended bill that oew-

plainant eould hare brought tha instant bill at least two toA one-

«iuarter years before he did* It also appeara fron the allegationa of

the bill, and from our opinion in Goebel et el * v, TAjman that for

* sometime prior to May 1, 1930*" oca^lainant had knowledge of the

alleged facts and ciroimstanoes upon which he based his right to

take possession* From the time that he took poeseesion he had tha

custody and control of the books and rscorda. During the two a»i

one-quarter years he allowed defendants to prosaoute their suit to a

final decision by the Supreme court, and it «aa in July, 1932, after

the issuanoe of the capias ad e atisfaciendum that he, faced with

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imprisonment if hie did not pay th« judgBMmt, filed the original hill
la the Instant cnse. He filed his petition in the County oourt»
under the Insolvent Debtors act (Lii atfia v, [email protected] et aXj^» 357 111,
S15}t in the fall of 1932, and we auet aEBume, therefore, that h*
was unahle to pay the judgment in the treepaes case, and it seevs
ressonahly clear that the instant Is ill was hroughit to avoid* If
posslhle, the effect of the oapiae* In equity a party is not per-
mitted to sleep on Ma rights to the prejudice of the party on lAiom
ha oakes a clalmi and failure to use reasonablo diligenoe in hringing
his suit to eni'orce a right after the facts in th« case aj-s fcnown to
a complainant Is fatal to his right to recoyax. loaches is an equitaibl*
defense and Is allowed to do justice between the parties under all %h»
circumstances of the case without regard to the passage of any dsflnito
period of tine. The fact that complainant was an experienced lawyer
and knew the alleged facts upon which He bases lUs right to an account-
lag "sometime prior to May l, 103O,« auat be considered in determining
the question of laches*

The decree may also be sustained upon the ground that com-
plainant comes into a court of equity with unclean hands. \»hat w«
hare heretofore saU in this opinion sufrioiently shows our reasons
for thus concluding. ..hlle this rule of equity, which forbids relief
to him who is guilty of inequitable conduct, applies only where tho
improper conduct concerns the very transaction of which complaint i«
made, it is clear that the Improper conduct of complainant was directly
connected with the subject matter of the instant litigation. Com-
plainanfs sole defense la the trespass case was based upon the con-
tract. Bqulty will not aid one who unlawfully and maliciously takes
the l^w into his own hands and then seeks to obtain relief in chancery
from the consequences of his conduct. This rule is esp.claJLly applicable
to the conduct Of complainant, an experienced lawyer familiar with the
facts, complainant contends that t3ie defense of unclean hands cannet


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teXXiST afeicT^JOl xlairfw ,\i>Xffpa lo »l»t Bids aXir' .fclbwXonoo aiaJ* «1

&di avedw ^Xfio e»iX<i^3 ,*s>»btj£io «XdJr.iJ:upeDi lo \iXiwa aX ojdw aid •#

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be rai*«<l by deaiurrar, and cit«B in support of this contention
Tlak0ff Vt :/yla nd» 272 111. App. 280. That oaso (p» 286) eitos
the rule of e-.wity which forhids relief to hia who is guilty of
inoquitahle conduct and holds that it applies only whero th« iapropor
conduct conoema the very transaction of which complaint is aadei
that the allegations of the hill in that cae*:; did not call for tho
application of the rule, and that if the defense existed it could "bm
properly ra4»«4 by answ«r« If w?)iit of jurisdiction* tbo bar of tho
statute of liAitationsf ths statute of frauds* laohee* unclean hands*
multifariousness* or defenses of a kindred character appear on tlM
face of a bill* It will be obnoxious to a ueimrrer unless an equltablo
escuse is alleged la the bill that avoids the operation of the rule*

Other grounds are urged by defendants in support of the
decree, but in our view of thio appeal it is not necessary to pass
upon the saao* There is* of course* no aierlt in eoaplalnant's con«
tentlon that as the chancellor disadssed thf^ bill upon the sOle grouiMl
that complainant came into ootirt with unclean hands* other grounds
urged by defendants in support of the dseree should not be considered.

The deoreo of the Circuit court of Cook county is affirxaed.


HuUlyan* J*, conours*

As Mr. Chief Justice friend was the chancellor in the trial of this
oaaso» h® took no part, in this court, in the coneiderstion mt nor
determination of this appeal.

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Appellant $

Appall •••


AFCT.AI, mm cn-ctnf Go«mx

I^laiatlff sued defendant In an action of tr«a|iae8 on %hM
9tt««» A jury returned a Teardlet finding defendant ipuiltr and
atseeeing plaintiff's d&nair«« n^ ^^ sim of one dollar* TIm Jurjr
aneweired two special intorrogateries autoatitted to thmtf &e foXloirat
{X) tlaat defendant was not aetuatod 1>y raalioe tovard plaintiff in
eeouxing hie axreett as alleged in the deolaratlont and (S) tliat
he vas actuated hy nalieo toirard tho plaintiff In the hringing of
tho erimtnal px'oeecutient as alleged in plaintiff's deolaration*
Defendant nade no ffiotion for a neir trial. Plaintiff's motion for
a now trial «>a« overruled and he has appealed froa a Judgaeait
entered upon the Terdiot*

fhe firet count of the deolaration ehargest i-ntor ajtiat
that &a June 18» 1929» defendant falsely» nalielouely* and without
any reasonahlo or prohahle oause oharged that plaintiff had rohbed
defendant with a gun) that defendant f!>lsely« nalioiously and without
any reasonable or probahle cause procured the arrest of plaintiff and
caused the latter to he brought before one of the judges of the
Monieipal court of Chicago ''to be dealt with according to law for
the supposed offenso«" and that defendant* on said d»te» wrongfully
and unijustly^ and without tstwsr reasonable or probable cause whatsoever
procured plaintiff to be arrested and to be inprlsoned and kept im


A^tfd •ii.I 6T2

« Y

vMsra UAjcHAoa aoira^/


|Krle«B for the a9ae« of twelTO liourii} tbott on Jub<» 2S» 1929 » dtafoad'o
ant falsalyt vuuLlclously RJid without sJiy reasonable ox yrobablo
c&UBO procurod plaintiff to be exaslnod before aaid judge touching
th« «ald supposed offenao and that said Judge* haring hourd and eon-
eider ed the case* adjudged and detoradlBod th^t plaintiff was not
guilty of the said aupfosod offense ai«3 then and there ao<;ulttod and
disehairged plaint! fff and that defendamt has not further proseoutod
his eesplaint «uad has abandoned the saao* and the said oeatplaint and
proseoutioa are wholly ended and deteminod* Count two alleges
nalieioua proaeeution* Counts three and four allogo slander* Counts
fire ai^ six allege false lapxisonment « Defend^^iit filed the plea of
the general Iseuei alee speeial j^eaa as to coiutts three and four
alleging t ia subatanee^ that the alleged slanderous wo^ds were spolcc^A
in the honest belief that plaintiff ^ms the person who had robbed
defendant and 4!0xe ''spolcen solely to said police off ioex fox the pur**
pose of bringing to Juetloe an individual whoai he belleyed guilty of
the crime of highway robberyt^ also special pleas a^ iq eounts one»
twOf flTo and siXf whieh allege* in substanoo* that prior to the signing
of thA ooffiplaint defendant was robbed by an individual aroed with a
roYOlToXf that said indiridual was identieal ia appoairsgaeo with plain-
tiff* that at the time ho signed tho ooatplaint aM made the ehargo
ho honestly beliered that plaintiff was the individual who had robbodl
hlm» and that ia mahiag the char go he was net actuated by iaalice nor
i%X vlXX tow&rd plaintiff*

fhore is little dispute as to the mala facts, i^aiatiff,
at the timo in queetioa* was about fifty years old. He was born ia
Iowa and had taught sehool to obtain a college education. After
leaving college he did aowspaper work ia that state. Ia August* 1997 i
he oame to Chicago* where ho worked for the City Pret® i^sesooiatioa
for more than a year* Bo then worked fox the Civil Sexviee asociatioa

bttM. i&i&Xs.rmo'Q bl^iB ^i bti£ «iffe» wM bMiPtmm4B tt*A iaus iKtmlqaoB ttlfl

ttfot bnA '■'■'&TLdi %ittUKi'i Qi aa &mSxi lAk^s&qn eaX^ I florae ( X<:ttSiio:tt oAt
~ lUti &sU; -itj't rrjv^iiito »oiXoq, bJt«« oi xJCsXwc fenrOQa'* •iPt* biw .^cr«liii»t»&

MslfiB^'^ «i^>^ oi loi-tc] J^Ad^ «(!»oa«^ei«fii» iil «fillt»xX^ ifoMv ,3c|« bcw orlt ^^w^
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hf^-ic: .:..KUllri.i.tJ.l arfi ««4af llltHi^Xq ixtlt MvsJtXatf tXie©ffMl »f!

i, . .i>Xo ttica»x X^^^Xl ii/ocfjsi SAW ,ooj;i»»i;^ Ri fttsXd «e.

^ ■'i-ruihjft ««-^t.Xlc<> « fili"i"'^ o; Io«fi5 ; :J-rI UtiJ? f)J8ll b«« Aifei

for elgliti or nine jroara. Ha began tlte praetio® of Xmv im SKN»««dl«l'»
1922* la Kareli* 19S9» k« was appointee'' an a,[email protected]«at 8t&i«*a atioraey
of Cook county by state's attorn^ Jobn A* SweAsoa* Plaintiff's
duties rolatod to "tsK fixing* oaeoe and kiis work isao 46ao in ttio
County bulldln^Et la wliioH the stato* % attorney hM aa offioe. On

Juao 13 » 1929 » Ibe kept ma appeiatneat wltli 3vd$n Hosnsrt £^are1»ate

judge of Cook eouaty» after wliloh* la pari^uaaoe of^dutieti) Iss went

to tk^ euisoaeor'B effiee» located in tke eaaie buildtiagt and after
oonpleting kle work tkere he v^ent to tl» «l.^fetli floor of the Citgr
Hall, wkieh ie oonneete^ with the County bulltUngt to ©aeek up
oertala oases that he i»as attending to la the Municipal court* He
left there and was standing* in the hallway on thit floor 'ȣiitiBg
for aa eleTator, wh«B defondsuat suddenly a|>pear«<S '#ith a policeman
and ^ZKSxjc^xv Rpld to the latter* "AXTmtt this swrn. lie held me U|>
la w i'®"! estate office thros? autnths ago*** Flaiatlff said to tbe-
policamaat '•Why* he is era^yt X am a la yeri" and tum&&4 the pollee-
maa his eard ai^ rcK^uested peTal8si(ai to telephone hie ofn oe«
Veither defendant nor the police offiesr had a warrant for plain-
tiff's aarrest* fh© officer refused to allow plaintiff to telephone
end said that he would •*haTe to oo»© slQug*^ rh© offitser took plain-
tiff hy the arn si^nA led hia to the Central Detail polio® a&ntlont at
Madlsoa and Market streets* l^alatlff there nsked lesre to telephone#
aii^ stated that he was aa assistant state's attorriey* Be was not
peradtted to telepl^ne» was handcuffed, placed in a patrol wa^n» and
drlToa to the Chie^igo lawn etatloa at 3S15 ^?e9t 63rd street » ahi©[email protected]#
Deffl^daat aceonpanied plaintiff and the officer during sll of this
time* At the last etatloa plaintiff said to the lieutenant of
polloe etationed there t *X would like to telephone* This thing
has gone far enough* If you will let ae oall up Judge Matchett
or Judge Johnaon ex Judge frudOf or John Swansonn the state's
attorney, or if you will call thea up yourself, y&a will find out


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Online LibraryIllinois Appellate CourtIllinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.279) → online text (page 47 of 91)