226 Ill. 262 | Ill. | 1907
delivered the opinion of the court:
This is an action on the case brought by appellant in the circuit court of Cook county to recover damages alleged to have resulted from negligence of the appellee in the performance of his duties as attorney at law under an employment as such by the appellant. The declaration alleged, in substance, that the plaintiff having contracted to purchase from Emma A. Leahy certain real estate in Cook county in fee simple and unencumbered for $22,000, employed the defendant, as an attorney at law, to examine the title to said real estate, and if it proved to be a good title in fee simple and unencumbered, to. cause such title to be conveyed to plaintiff, but the defendant neglected his duty in that behalf, and on December 2, 1889, negligently and wrongfully caused and procured plaintiff to pay the purchase price for said real estate and accept a deed therefor when in fact the real estate was subject to encumbrances, secured by trust deed, amounting to $12,000; that the holders of the said encumbrances thereafter commenced foreclosure proceedings, and notwithstanding defendant exercised all due care and diligence in the defense thereof, he was compelled to pay the encumbrances, with interest, amounting to* $16,522.70, and costs and expenses amounting to $5600. There was much pleading which it is not necessary to state. The declaration finally consisted of original counts 1, 2, 3 and 4, amended additional counts 5, 6, 7 and 8, and additional counts 9 and 10. Demurrers were sustained to the amended additional counts 5, 6, 7 and 8, and plaintiff elected to stand by them. To the other counts pleas were filed of not guilty, the Statute of Limitations of five years and the Statute of Limitations of ten years. Replications to the pleas of the Statute of Limitations were filed and demurrers were sustained thereto, whereupon the plaintiff elected to abide by his replications and there was a final judgment for the defendant. Plaintiff appealed to the Appellate Court for the First District, and the branch of that court affirmed the judgment.
A decision as to the sufficiency of the amended fourth replication of the plaintiff to the second plea of the defendant to counts 1, 2, 3 and 4 of the declaration will be decisive of the case. That replication was intended to set up a fraudulent concealment of the cause of abtion by the defendant under section 22 of chapter 83, Revised Statutes of 1874, concerning limitations, which is as follows: “If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.” Under that section, if the defendant fraudulently concealed the cause of action alleged in the declaration from the knowledge of the plaintiff, and the plaintiff discovered the same within five years before the action was commenced, the Statute of Limitations would not apply. To meet the requirement of the statute in a case like this, where the original basis of the action is not a fraud, there must be something of an affirmative character designed to prevent, and which does prevent, a discovery of the cause of action. Mere silence by a person liable to an action is not concealment of the cause of action, but such concealment must consist of affirmative acts or representations. Wood v. Williams, 142 Ill. 269; Parmelee v. Price, 208 id. 544; 19 Am. & Eng. Ency. of Law, (2d ed.) 253.
The facts averred in the replication under consideration are, that plaintiff was unlearned in the law and unable to determíne for himself the matters in the declaration and replication mentioned; that defendant, for hire and reward, was employed by plaintiff to advise and direct him with respect to such matters; that plaintiff was and remained ignorant until December 9, 1899, of the committing by the defendant of the grievances in the declaration mentioned; that on September 11, 1893, within less than five years after the cause of action arose, the holders and owners of the promissory notes in the declaration mentioned instituted in the circuit court of Cook county a suit against the plaintiff and other persons to subject the real estate to sale for the payment of the amount due on said notes; that plaintiff retained and employed the defendant, for hire and reward, to investigate said suit and the questions of law and fact connected therewith and bearing upon the rights and liabilities of the plaintiff with respect to the promissory notes, trust deed and real estate, and to direct plaintiff as to the course to be pursued with respect to the same; that defendant, well knowing that he had been guilty of committing the grievances in the declaration mentioned and that a cause of action had arisen against him on account thereof and that plaintiff was ignorant thereof, and craftily and fraudulently intending to conceal from the plaintiff the committing of said grievances and to prevent plaintiff from bringing suit withn five years after the committing of said grievances, falsely, and maliciously represented to the plaintiff that the plaintiff was the owner in fee simple of the real estate free from all encumbrances and could successfully defend the suit and defeat the claims of the complainants therein, and that plaintiff, relying upon the truth of said representations and acting under the direction and advice of the defendant, defended the suit until December 9, 1899, when it was finally decided adversely to him, until which time he was ignorant of the committing of the grievances in the declaration mentioned.
It is a general rule of pleading that the facts upon which the court is required to state the law shall be alleged, (Gould’s PI. chap. 3, sec. 120; 1 Shinn’s PI. & Pr. sec. 475;) and in a replication to a plea of the Statute of Limitations it is necessary that the facts constituting the fraud shall be clearly stated. (Beatty v. Nickerson, 73 Ill. 605; 13 Ency. of Pl. & Pr. 246.) The replication must set out facts and circumstances which amount, in law, to a fraudulent concealment by the defendant of the cause of action, and if it fails to set out such facts as in the law constitute such fraud it will be bad on demurrer. This replication contains no averment that the defendant concealed from the plaintiff any fact or did anything to prevent plaintiff from ascertaining any fact upon which the cause of action depended, either by affirmative act or any scheme or device to prevent inquiry. If there was any fraudulent concealment it related to matter of law, and consisted in the representation that the real estate was not subject to the encumbrances and that plaintiff could successfully defend the foreclosure suit. Although all persons are presumed to know the law, it is undoubtedly true that where the relation of attorney and client exists a fraudulent concealment of the cause of action by the attorney may be accomplished by a misrepresentation of the state of law or the legal rules or principles applicable to the facts, knowingly made for the purpose of deceiving the client. While that relation requires a full disclosure by the attorney of all matters within the scope of his employment, it does not require him to volunteer information to his client that his client has a cause of action against him. The pleading is to be construed most strongly against the pleader, and the replication wholly fails to aver that the defendant knew the contrary to his representation to be the law. There is no distinct or clear averment that the opinion rendered by defendant as to the legal rights of the plaintiff was known by defendant to be false, and for aught that appears it may have been an incorrect opinion resulting from want of knowledge. The words “craftily,” “fraudulently,” “falsely” and “maliciously” are of no avail in the absence of averments of facts to which they properly apply. The replication fails to show any misrepresentation of any character as to any fact, or any false or fraudulent misrepresentation as to the state of the law or the legal rights of the plaintiff arising out of the facts, and the court was therefore right in sustaining the demurrer.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.