| Ill. | Jun 19, 1907
delivered the opinion of the court:
The principal controversy in this case is as to whether or not an oral contract was entered into between plaintiff in error and defendant in error McNellis, as is averred by the bill and as plaintiff in error testified. According to her testimony there was no one present at the making of this contract other than herself and McNellis. The latter testifies that no such contract was made but that another and different contract was entered into, by virtue of which contract the plaintiff in error took possession of the premises and the personal property involved in this suit. The testimony of McNellis is inconsistent with documentary evidence found in the record. The same is true, however, of the testimony of plaintiff in error, and the testimony of each finds some corroboration in the record. After a consideration of all the evidence in the case we are not able to agree with counsel for plaintiff in error that the decree should be reversed on the theory that the finding therein to the effect that no contract was made between plaintiff in error and McNellis, as alleged in the bill, is clearly and manifestly against the preponderance of the evidence. The witnesses were examined in the presence of the chancellor. He enjoyed opportunities for determining their credibility which we do not have. It does not appear to us that his finding on this disputed question of fact is clearly and palpably wrong, and we therefore will not disturb that finding. Columbia Theater Co. v. Adsit, 211 Ill. 122" date_filed="1904-06-23" court="Ill." case_name="Columbia Theatre Amusement Co. v. Adsit">211 Ill. 122, and cases cited.
The decree, however, is erroneous in that it grants to McNellis affirmative relief not sought by cross-bill nor suggested by her answer. Plaintiff in error, at the institution of this suit, was in possession of the real estate and the personal property remained undisturbed in the rooms occupied by her. The decree orders that she surrender possession of both the real and personal property to McNellis. Upon the pleadings in the case such affirmative relief could not rightfully be awarded. Stone v. Smoot, 39 Ill. 409" date_filed="1866-01-15" court="Ill." case_name="Stone v. Smoot">39 Ill. 409; White v. White, 103 id. 438; Jackson v. Sackett, 146 id. 646; Mehan v. Mehan, 203 id. 180.
The decree reserved to defendants the right to file in the cause suggestions of damages sustained by them by reason of the wrongful suing out of the injunction, and a like reservation may be made by the decree hereafter entered by the superior court.
The decree of the superior court will be reversed and the cause will be remanded to that court, with directions to enter a decree dissolving the injunction and dismissing the bill for want of equity, without awarding to McNellis affirmative relief which she obtained by the decree now under review. The defendants to the bill will not be entitled to have in that decree any provision of a character beneficial to them, or either of them, beyond those dissolving the injunction, dismissing the bill, awarding costs against the plaintiff in error and reserving the right to file suggestions of damages.
Reversed and remanded, with directions.