186 Ill. 593 | Ill. | 1900
delivered the opinion of the court:
One of the questions of fact, arising upon the trial below, was whether the words, “said store and basement being the first north of the Franklin street entrance,” were in the lease when signed by the parties thereto, or were inserted therein after the lease was signed by the appellants. The master, to whom the cause was referred by the trial court, found that these words were in the lease when the appellants signed the same. The circuit court confirmed the finding thus made by the master, and the Appellate Court has affirmed the decree of the circuit court. After a careful examination of the evidence, we are satisfied that the lower courts came to the correct conclusion upon this question of fact. It is unnecessary to enter into a discussion of the evidence. We see no reason for disturbing the decisions of the lower courts upon this branch of the case.
Another question of fact, which arose upon the trial of the case, was whether the wrong number of the store rented was inserted in the lease by mistake. By the terms of the lease the store rented was described as “No. 129 Franklin street,” whereas, as matter of fact, there was no such store as No. 129 Franklin street, but the store actually occupied was “No. 123 Franklin street.” The evidence shows, that the store, which was actually rented and which both parties intended to describe in the lease, was the first store north of the Franklin street entrance. The first store north of the Franklin street entrance was No. 123 Franklin street, and not No. 129 Franklin street. This was the store, which appellants entered into the possession of and which they occupied and paid rent-for from May 1, 1892, up to December 31, 1894, a period of about two years and eight months. That the appellants intended to occupy this store, whose number was 123, is apparent from the fact that, before they took complete possession of the same, and during the reconstruction and remodeling of the building, they went to the store and suggested changes and alterations for their own benefit and convenience in the construction thereof. Where the premises in a deed are so described, that they can not be identified, the conveyance is void; but where the grantee has gone into possession, and the parties have given a construction to their contract by the manner in which they have executed it, the objection of uncertainty will be removed. (Purinton v. Northern Illinois Railroad Co. 46 Ill. 297). So, in the case at bar, the appellants, by their conduct in occupying the premises at No. 123 Franklin street, and paying rent therefor for two years and eight months, have construed the lease in question to be a lease of No. 123 Franklin street.
As complainant below, the lessor named in the lease, and the appellants here, the lessees therein named, evidently contemplated the occupation of the first store and basement north of the main entrance on Franklin street, and as that store was No. 123 Franklin street, and not No. 129 Franklin street, it is evident that the description of the property as No. 129 Franklin street in the lease was a mistake. The appellants made no objection to the location of the store as being further north of the corner of Franklin and Madison streets than, as they now claim, was the original intention of the parties. They urged no complaint to their landlord, that they had been forced to occupy a store whose location was different from the one agreed upon, but, on the contrary, continued in possession without protest, until the error in the number of the store was discovered in February, 1895. As No. 123 Franklin street, being the first sto're and basement north of the main entrance on Franklin street, was the store which the complainant in the bill below intended to lease, and which the appellants show by their conduct that they intended to occupy, the mistake, made by the insertion of the wrong number in the lease, was a mutual mistake, that is to say, common to both parties. The mistake was none the less mutual, because the wrong number was written into the lease in the description of the premises by the scrivener, who prepared the lease.
That a court of equity has jurisdiction to reform a written instrument upon the ground of mistake is too well settled to need discussion. In order, however, to justify the reformation of a written instrument upon the ground of mistake, three things are necessary, first that the mistake should be one of fact, and not of law; second that the mistake shouldbe provedby clear and convincing evidence; and third that the mistake should be mutual and common to both parties to the instrument. (Purvines v. Harrison, 151 Ill. 219; Warrick v. Smith, 137 id. 504; Lindsay v. Davenport, 18 id. 375; Thompson v. Ladd, 169 id. 73). The three requisites, necessary to the reformation of a written instrument by reason of a mistake therein, as such requisites are above designated, exist in the present case. The mistake here was a mistake of fact, and was common to both parties to the instrument, and is established by clear and convincing proof.
It is claimed, that the trial court erred in rendering a decree against the appellants for the rent due by the terms of the lease, which remained unpaid at the time of the rendition of the decree in the cause. The lease was dated February 6, 1892, and the term, for which the premises were rented, was a term of five years beginning May 1, 1892, and ending April 30,1897. The monthly installments of rent were payable in advance on the first day of each month. This bill was filed on March 5, 1895, and, at the time when it was filed, the rent was due for the months of January, February and March, 1895. Clearly, the court of chancery had a right to enter a decree against appellants for the amount of rent, which was due, by the terms of the lease, before and up to the time of the filing of the bill. Appellants claim that there was a remedy at law by suit upon the lease, and that the appellee should have brought her action at law for the unpaid rent, both that which accrued before the filing of the bill, and that which accrued aftér the filing thereof. The objection, that the complainant in the bill had an adequate remedy at law, so far as the collection of the rent due was concerned, was not set up in the answer filed by the appelAs the objection was not made in the answer, it cannot be made upon this appeal. (Monson v. Bragdon, 159 Ill. 61; Village of Vermont v. Miller, 161 id. 210). It is well settled that, if a bill of complaint shows any ground of equitable jurisdiction, and the defendant by his answer submits to the jurisdiction of the court, it is then too late for him to object that the plaintiff has an adequate remedy at law. (Stout v. Cook, 41 Ill. 447; Magee v. Magee, 51 id. 500). The defense, that an adequate remedy exists at law, can only be'made by plea or answer when the bill is good on its face. Of course, this rule is subject to the qualification that the subject matter of the litigation and the character of the relief are not foreign to the power of a court of equity. (Kaufman v. Wiener, 169 Ill. 596). Here, the court of equity had jurisdiction for the purpose of reforming the mistake in the written lease. The subject matter of the bill was not, therefore, foreign to the jurisdiction of a court of chancery, and, hence, the appellants, after submitting themselves and the cause to the jurisdiction of the court, will not be allowed at the hearing to insist, that the court should not proceed further upon the ground that a court of law could furnish an adequate remedy.
The rule is well established that, when a court of equity has jurisdiction of a cause for one purpose, it will retain such jurisdiction for all purposes. When the controversy requires any purely equitable relief, such as will give a court of equity the right to act, the court will proceed to a final determination of all the matters at issue, and, in doing so, it may establish purely legal rights and grant legal remedies, which would otherwise be beyond its power. The concurrent jurisdiction of equity may thus be exercised over legal causes of action, in order to avoid a multiplicity of suits. In Keith v. Henkleman, 173 Ill. 137, it was held that the principle thus announced-applied to cases where equity obtains jurisdiction for the purpose of reforming and correcting an instrument on account of some mistake, and then proceeds to ascertain thp damages recoverable upon the instrument itself. In Keith v. Henkleman, supra, a court of equity had acquired jurisdiction to reform an injunction bond, and it was there held that it was not necessary to remit the parties to their remedy at law for damages, but that a court of equity might incidentally assess such damages as were shown to have resulted from the breach. In Mercantile Ins. Co. v. Jaynes, 87 Ill. 199, it was held that, in a proceeding by bill in equity to correct a mistake in an insurance policy, it was competent for the court in the same decree to rectify the mistake, and give judgment for the amount due upon the policy, as rectified. (See, also, Continental Ins. Co. v. Ruckman, 127 Ill. 364).
The same principle has been applied in cases of bills to enjoin waste. Where a court of equity is asked to grant an injunction to prevent future waste, and where an account of the waste already done is prayed, the court, to prevent a double suit, will not only enjoin the commission of future waste, but will decree an account and satisfaction for the waste that has been done. (Armstrong v. Wilson, 60 Ill. 226; Nelson v. Pinegar, 30 id. 473; 1 Story’s Eq. Jur. sec. 518). This doctrine was announced and enforced in the case of Stickney v. Goudy, 132 Ill. 213, where it was held that, if a controversy contains any equitable feature which authorizes a court of equity to take cognizance, that court will retain jurisdiction for all purposes, and establish purely legal rights and grant legal remedies, which would otherwise be beyond the scope of its authority.
We see no reason why the same rule does not apply to the case at bar. The court of equity here had jurisdiction to reform the lease by means of the mistake made therein, and, having jurisdiction for such purpose, it could go on to a complete adjudication, and find the amount of rent due by the terms of the lease, and decree the payment thereof. The portion of the decree, which orders the payment of the rent due, grants a species of relief which, though primarily legal in its character, comes within the jurisdiction of a court of equity, because it is incidental and ancillary to the main relief asked for, to-wit: the reformation of the written instrument.
It is strenuously insisted, however, by counsel for appellants that, while the doctrine thus announced may be correct so far as the rent due prior and up to the time of filing the bill is concerned, it is yet inapplicable to the present case so far as it relates to the rent accruing under the lease after the filing of the bill. It is said that the appellee should have filed a supplemental bill, in order to entitle herself to a decree for rent accruing after the filing of the bill. In the case at bar, appellee did not file a supplemental bill. Undoubtedly, the rule in actions at law is, that the right to judgment depends upon the facts as they exist at the commencement of the action, (Bacon v. Schepflin, 185 Ill. 122,) but-such is not the rule in equity. The relief administered in equity is such as the nature of the case, and the facts as they exist at the close of the litigation, demand. (Peck v. Goodberlett, 109 N. Y. 180; Worrall v. Munn, 88 id. 137; Sherman v. Foster, 158 id. 587).
In Brown v. Miner, 128 Ill. 148, where a mortgage provided that, in case of foreclosure and sale of the mortgaged premises, the mortgagee should be paid out of the proceeds of sale the expense of advertising", etc., together with moneys advanced for taxes, assessments and other liens, etc., and the mortgagee paid such taxes subsequent to the filing of his bill to foreclose, in which the duty of the mortgagor to pay the taxes and his failure to do so were alleged, it was held that the complainant was properly allowed by the decree the amount of such advances under the general prayer for relief without filing a supplemental bill.
Authorities may be found, which hold that the filing of a supplemental bill is necessary in such a case as this, where the installments of rent under a lease fall due after the filing of the original bill. But, without deciding definitely that it is not necessary for the complainant in such a case as this to file a supplemental bill, we are yet of the opinion that the judgment now under review should not be reversed upon the ground that no supplemental bill was filed, for the reason that the rights of thfe appellants were in no way prejudiced by the failure to file such a bill. As is said by the Appellate Court in their opinion deciding this case: “If it was error to decree the payment of rent, which became due after the filing of the bill, it was error without prejudice, and therefore cannot avail appellants.”
The general rule undoubtedly is, that a supplemental bill ought to be filed for the purpose of setting up matters, which have happened after the filing of the original bill; (Kennedy v. Bank of Georgia, 8 How. 586; Miller v. Cook, 135 Ill. 190); but, in such case, the object of filing the supplemental bill is to put the new matter in issue, as a new interest vested in an old party, or in an existing party to the suit. As a general thing, a supplemental bill calls upon the defendant to answer the supplemental' matter only. (2 Barb. Ch. Pr. 59, 72; 6 Am. & Eng. Ency. of Law, p. 776). If, therefore, the defendant has an opportunity to set up any defense, which he may have’to the supplemental matter, he cannot complain, whether there was the technical filing of a supplemental bill, or not.
In the case at bar, the trial court, after the original report of the master was filed, referred the cause back “for the sole purpose of taking evidence in regard to payment or non-payment of rent by said defendants to said complainant, or to his agents for his use, since December, 1894, for the premises mentioned and described in the bill of complaint in said cause as No. 123 Franklin street,” etc. After this order of reference was made, and on November 16, 1897, a new order of reference was entered, and was amended so as to permit the defendants “to make any and all defenses legal or equitable, which they may have as to rent due and unpaid under the terms of said lease, except so far as such defenses are inconsistent with the findings of said master in his report, heretofore made to this court, upon any other matter than the amount of rent due under said lease.”
The appellants were thus permitted by the court below to set up any defense, which they might have to the payment of the installments of rent falling due after the filing of the bill, and up to the time of the expiration of the lease on April 30, 1897. The original bill itself contained a prayer, that the appellants should be decreed to pay not only all the rents which had accrued to the complainant, but all the rents which should remain unpaid at the time when the decree should be entered. The prayer of the bill thus advised the appellants, that the complainant would seek a decree for all the rent that should be due when the final decree should be entered. The appellants themselves introduced evidence, showing that they abandoned the premises on April 30, 1895, and never occupied them after that date. The appellants were thus given full opportunity to present all defenses against the decree, which was rendered for rent falling due after the filing of the bill, and they would have been entitled to nothing more than this, if they had been defendants to an action at law for the rent due upon the lease.
No error was committed by the court below in allowing the lease to be corrected by the substitution of the word “they” for the word “he” ip. one of the covenants, or by the insertion therein of the words “situate at northeast corner of Madison apd Franklin streets,” etc., because the mistake, so far as these matters were concerned, is sufficiently established. The location of the building at the north-east corner of Madison and Franklin streets was stated both in the bill and in the answer. The reformation of the lease, therefore, in these particulars worked no injury to appellants.
There was no error in the allowance of interest upon the over-due installments of rent. (Walker v. Converse, 148 Ill. 622; Worrall v. Munn, 38 N. Y. 148).
We discover no error in the record, which would justify us in reversing the judgment of the Appellate Court. Accordingly, the judgment of the Appellate Court, affirming the decree of the circuit court, is affirmed.
Judgment affirmed.