119 Ill. App. 566 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The fire which destroyed the insured property occurred April 7, 1893, and the amended declaration was filed in 1904. By the contract between the parties the time for bringing suit is limited to twelve months next after the fire. The plaintiff had, by the contract, sixty days after the fire, or until about June 6, 1893, in which to furnish to the defendant proof of loss, so that plaintiff might have commenced suit in June or July, 1893. Two counts of the amended declaration were filed March 10 and the third count April 27, 1904, both dates being more than ten years after the cause of action accrued. There is no controversy between the parties as to the fact that the amended declaration was filed more than ten years after the cause of action accrued. By the statute, suit on a written contract is barred unless brought within ten years after the cause of action accrued. There being no controversy between the counsel as to the facts, the questions presented are questions of law, namely: first, whether the action is barred by the provision in the contract limiting the time for bringing suit to twelve months after the fire; and, second, whether the suit is barred by the Statute of Limitations. The solution of both these questions depends on the question whether the amended declaration states a new cause' of action. The original declaration, as shown in the statement preceding this opinion, consisted solely of the common counts; whereas the amended declaration consists of a special count on the insurance policy, in the usual form, a count on an account stated and an indebitatus assumpsit count. It was held in the former appeal that there could be no recovery under the common counts, and it is not claimed, in the present appeal, that there can be any recovery under the second or third counts, which are common counts, so that the inquiry must be confined to the original declaration and the first count of the amended declaration. We are unable to distinguish this case, in principle, from Fish v. Farwell, 160 Ill. 236. In that case the original declaration “contained the common counts only.” Ib. 239. The amended declaration contained special counts setting forth a contract between the parties and alleging a breach thereof by' the defendants, to the damage of the plaintiffs. Ib. 246. The court held, citing Hart v. Tolman, 1 Grilm. 1, that “a court cannot go outside of the declaration to ascertain the cause of action.” Distinguishing between the original and amended declaration, the court say: “In Gorman v. Judge, etc., 27 Mich. 138, which was cited by this Court _ with approval in Chicago, Burlington and Quincy Railroad Co. v. Jones, supra, it was held that a declaration upon the common counts in assumpsit, and one upon a special contract, are for distinct and different causes of action, where the basis of recovery under the latter is such that there could be no recovery under the former, and that such former declaration cannot be amended so as to set forth a new and distinct cause of action upon a special contract which has become barred by the Statute of Limitations since the original declaration was filed, since that would be to permit the fiction of relation to nullify an act of the legislature. In the case at bar the original declaration alleged a sale and delivery by plaintiffs and a refusal by defendants to pay the price or value. The gist of the additional counts is, that the parties entered into an executory contract, by which the plaintiffs agreed to manufacture and sell, and the defendants to select from samples, order and buy, cloaks of the cost value of $125,000 within a certain period, and that the plaintiffs were ready and willing to 'make and deliver the cloaks, but that the defendants would not select, order, buy and receive them. These causes of action are separate and distinct from each other— in fact wholly different and utterly inconsistent.” Ib. 247-8.
We do not understand counsel for plaintiff to contend, that the case of Fish v. Farwell, and numerous other cases, are not against his contention. On the contrary, he impliedly admits this, saying: “But these decisions were rendered prior to enactment, of the Act of 1872, (Sec. 23 of Practice Act), or merely following decisions rendered prior to 1872, or decisions following such decisions, and were rendered in ignorance of the existence of the act of 1872, and are of no binding force. Such are the following Here follows a long list of cases, among which are Eylenfeldt v. Ill. Steel Co., 165 Ill. 185; Foster v. St. Luke’s Hospital, 191 Ib. 94, and Chicago City Ry. Co. v. Leach, 182 Ill. 359, in which last case Fish v. Farwell is cited with approval.
Counsel for plaintiff, at the close of plaintiff’s evidence, introduced before the jury and presented to the court his own affidavit and the bill of exceptions in the former appeal, for the purpose of showing and having the court find, as matter of fact, that plaintiff intended, when he commenced suit, April 4, 1894, to sue on the insurance policy. But the court refused to consider the affidavit or bill of exceptions, and this is assigned as error. The ruling was proper. "“A court cannot go outside of the declaration to ascertain .the cause of action.” Fish v. Farwell, supra,. The elaborate argument of counsel for plaintiff is mainly an attempt to prove that the court, in some cases, has omitted to consider section 23 of the Practice Act, and, in other cases, has misinterpreted it. Assuming that the learned counsel well knows that we are bound by the decisions of the Supreme Court, the argument must be intended, ultimately, for that court, and made on the hypothesis that this court, in such cases as the present, is a necessary half way station on the route from the trial court to the Supreme Court. We have omitted to consider the questions of law presented as of first impression, or to cite any of the numerous cas'es in support of and following the case of Fish v. Farwell, as to do so would be a mere waste of time.
We are of opinion that the suit was barred by the limitation in the contract. Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 382; Metropolitan Acct. Assn. v. Clifton, 63 Ill. App. 153. Also, that the suit was barred by the Statute of Limitations. The court did not err in taking the case from the jury.
The judgment will be affirmed.
Affirmed. .
