173 Ill. 357 | Ill. | 1898
delivered the opinion of the court:
The amended declaration counted upon an alleged promise and agreement of appellees’ testator, alleged to have been made and entered into in the month of July, 1887. The Appellate Court found and recited in its judgment that the promise and undertaking of the said deceased defendant relied upon were made and entered into, as disclosed by the evidence, in the month of June or July, 1887. The amended declaration was filed on the 27th day of January, 1896,—-more than eight years after the making of the alleged verbal agreement,—therefore the bar of the Statute of Limitations had, in point of time, become complete when the amended declaration was filed, and unless the amendment was but a restatement of the same cause of action set out in the original declaration, the statute operated to defeat any recovery in the cause. Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 Ill. 361.
We think the cause of action declared by the amended declaration not the same as that attempted to be averred in the original declaration. The original declaration charged that the said Pullman, in order to induce the said Hopkins and Secord to form a corporation and engage in business as retail dealers in the store rooms in the Arcade building, assured the plaintiffs that “he, Pullman, would see to it that plaintiffs should have as many stores in the building, and for as long a time as they desired, at a rental of $100 per month for each of said stores;” that he induced them to execute a lease binding them to pay a larger sum per month in reliance upon his promises that “he would see to it” that only $100 per month for each of said rooms should be paid; that the plaintiffs relied upon these promises, raised a large sum of money and invested it in goods, rented the store rooms, placed the goods therein and engag'ed in business as retail merchants in said rooms in the year 1885 and built up a large and profitable business; that “in July, 1887, and until December, 1889, the said Pullman wrongfully and injuriously tried in every way possible to compel the plaintiffs to give up possession of the stores so occupied by them in the said Arcade building and move away therefrom, in order that the said stores, which had been rendered of great value, to-wit, of the value of §10,000, by reason of the plaintiffs having conducted a successful business therein, might revert back to the said defendant (Pullman) and the said Pullman Palace Car Company, together with the good will and trade therein established;” that said Pullman refused to see that said plaintiffs were not required to pay more than §100 per month as rental for each of said rooms, but procured the said Pullman Palace Car Company to notify the said plaintiffs that it had terminated the said lease for said store rooms and to otherwise force the plaintiffs to give up the said stores and leave the said town of Pullman, and that the plaintiffs were forced to and did leave the said town of Pullman. The declaration alleged the plaintiffs were greatly damaged by being required to so close up and abandon their business in Pullman, “which,” to quote from the declaration, “said plaintiffs were forced to do, by means whereof all the said several sums of money expended by the said plaintiffs in forming the said Arcade Trading Company, in building up its business and good will, in payments of said Pullman Palace Car Company of the excess of rent, as aforesaid, of the large sums of money laid out and expended by the plaintiffs in removing their said large stock of goods to where the same now is, and which is now, because of the change of location, greatly depreciated in value, to the extent, to-wit, of §10,000, all of which has become wholly lost to the said plaintiffs.”
The cause of action set forth in the original declaration was the alleged wrongful acts and contrivings of the said Pullman, by which it was alleged the plaintiffs were compelled to abandon the further prosecution of their business in the said rooms in the town or city of Pullman, and the alleged over-payment of rents was referred to only as an element of the damage resulting from their expulsion from the stores and from the city. The declaration, as amended, relies wholly upon a contract alleged to have been wholly made between the plaintiff corporation and the said Pullman, whereby the said Pullman, on the first day of July, 1887, agreed that if the plaintiff would pay to the Pullman Palace Car Company the sum of §750,—the amount paid by the plaintiff to the Pullman Palace Car Company for the rent of the rooms so occupied by it from the first day of January, 1887, to the first day of July, 1887, in excess of the sum of §100 per month for each room,—and would each month thereafter pay to the Pullman Palace Car Company the full contract rental price for each of said rooms, he, the said Pullman, would re-pay to the plaintiff all amounts so thereafter paid for the monthly rental of each of said store rooms in excess of said §100 for each of them.
It is manifest the cause of action set out in the amended declaration is not a mere re-statement of that averred in the original declaration, but is another and different cause of action. Before the amended declaration was filed the right to institute an action upon the alleged agreement had been barred by the Statute of Limitations. A new suit could not have been then maintained upon the said alleged agreement. It is well established that if a new cause of action, distinct from that already averred in the declaration, is introduced by way of amendment to the declaration, the amended pleading does not relate back to the original declaration and thereby take it out of the operation of the Statute of Limitations, but that the date of the filing of the amendment is the beginning of the action on the new cause of recovery, and the Statute of Limitations may be invoked to defeat recovery under the amended pleading. North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 id. 361; Eylenfeldt v. Illinois Steel Co. 165 id. 185.
The judgment of the Appellate Court is correct and is affirmed.
, , . „ 7 Judgment affirmed.
