205 Ill. 531 | Ill. | 1903
The Appellate Court, in disposing of the first contention of the appellant, used the following language:
“As to the error which brings in question the judgment of the court in overruling appellant’s demurrer to the third count of plaintiff’s declaration, it is insisted by counsel for appellant that much of the count is mere inducement, and that the essential ground of the action is the claimed consolidation of the Abbey company with appellant, and that if the pleading fails to show that there was such a consolidation, then the demurrer was wrongfully overruled. Whether matter alleged in a pleading is inducement or surplusage must be determined by a sound construction of the entire pleading. * * *
“The allegations that the Abbey company made a deed to appellant, containing certain agreements, which deed was accepted by appellant, and that appellant went into possession of the leasehold estate, were all immaterial matters if the appellee was grounding his action on the claimed consolidation, only. In no sense can they be taken to be in necessary explanation of the main groundwork of the count, if construed as a count for consolidation, only. Ought these allegations-to be considered as mere surplusage? The allegation that the deed contained an agreement ‘subject to the performance of the agreements therein mentioned to be performed by the lessee, ’ shows that the pleader relied upon the privity of contract that the law, in a proper case, may say exists; and the fact that the pleader says ‘that the defendant thereupon took possession of the property by said deed conveyed to it, and from thence until the commencement of this suit has had the use, control and enjoyment thereof,’ etc., shows that the pleader was relying for a recovery on the grounds of privity of estate existing between appellee and appellant as the assignee of the lessee, the Abbey Mining Company. To denominate that kind of pertinent allegations as surplusage when they are attacked in no way except by a general demurrer, merely because there is in the same count an attempt to hold appellant liable on the theory of a consolidation, would ■be to construe away essential allegations without authority of law. We are of the opinion that the count should be regarded as presenting a double, or possibly á treble, ground of liability for a single demand. In other words, the count must be regarded as containing the fault known in pleading as duplicity, and such a fault can be reached only by special demurrer. * * *
“By the allegations already quoted, appellant is admitted to have received an assignment of the leasehold estate from the Abbey company, and the demurrer admits that appellant was in possession of the estate from September 20, 1891, to September 20, 1894. An assignee of a lessee is bound, by reason of the privity of estate, to a performance of all express covenants which run with the land. Consolidated Coal Co. v. Peers, 166 Ill. 361; Sexton v. Chicago Storage Co. 129 id. 318; Webster v. Nichols, 104 id. 160.”
We have examined the third count of the declaration, which is set out in full in the opinion of the Appellate Court, (97 Ill. App. 188,) and agree with the reasoning and conclusion of that court, and are of the opinion that while the count is in artificially drawn it is not vulnerable to a general demurrer, but states sufficient facts to entitle the appellee to recover, and that the court properly overruled the demurrer to said count.
As to the second contention, we agree that the court erred in rendering judgment in favor of the appellee on the third count without disposing of the issue made on the first count, but are of the opinion that such error was invited by the appellant and that it waived the right to take advantage of such error. The correct practice upon the appellant refusing to plead over, except for the agreement of the parties, would have been for the court to have entered a judgment as by nil (Licit on the third count and then to have empaneled a jury to try the issues of fact upon the first count, and on that trial to have submitted the assessment of damages under the judgment by nil dicit to the same jury, so that there would be but one judgment. (Keeler v. Campbell, 24 Ill. 288; Klein v. Wells, 82 id. 201.) The record shows, however, that the court, upon overruling the demurrer to the third count, gave judgment nil dicit in favor of the plaintiff and awarded a writ of inquiry to ascertain the plaintiff’s damag'es, whereupon, “the said writ of inquiry coming on to be heard before the court without a jury, by consent of parties, the court, after hearing the evidence, finds the plaintiff’s damages to be the sum of three thousand six hundred dollars ($3600),” and adjudged that the plaintiff have and recover of and from the defendant the said sum, etc. The appellant having agreed that the court might proceed to execute the writ of inquiry without a jury, and the damages of the appellee having been assessed and judgment rendered in his favor by virtue of such agreement, we are at a loss to know upon what principle appellant can now ask a reversal of that judgment in this court by reason of such ’action of the court.
The parties having waived a jury and agreed that the court might assess the damages under the third count, such action amounted to an abandonment of the first count. The first and second counts of the declaration having been eliminated, the third count was the" only count of the declaration undisposed of at the time judgment in favor of the appellee was rendered upon that count. The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
