APPEAL from the First Division of the Appellate Court for the
First District; heard in that court on appeal from the Superior
Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
The plaintiff, appellee here, Central States Cooperatives, Inc., brought suit in the superior court of Cook County against the defendants-appellants, Watson Bros. Transportation Company, Inc., and Burl Cotton to recover the reasonable rental value of premises which the appellee had purchased and of which the appellants were in possession. The appellee also sought to recover special damages for the failure to surrender possession to it and double rent under the provisions of the statute. (Ill. Rev. Stat. 1947, chap. 80, par. 2.) The appellants filed an answer setting forth that by an oral contract between the parties it was agreed that the appellants could remain in possession of the property from October 1, 1946, to June 30, 1947, at a monthly rental of $850 and alleged that it had tendered the rent due under said oral agreement, which had been refused, and that the appellee was entitled to such agreed rental. Appellants denied the other allegations of the complaint. Thereafter, upon motion made by the appellee, the trial court entered judgment against the appellants for $7650, being the amount of rent which the appellants admitted by their answer they had agreed to pay. From this judgment the appellants appealed to the Appellate Court, First District, which court affirmed the judgment of the trial court. The appellants sought leave to appeal from the action of the Appellate Court, which was allowed, and the case is now before us for decision. The appellants contend that the judgment of the superior court should be reversed for the reason that it is not based upon any allegations of the complaint, and that a partial judgment can be had only for a part of the demand made in the complaint. They contend that, since the complaint asks only for reasonable rent for use and occupancy of the premises and does not ask for the agreed rental as alleged in the answer, there cannot be an express contract to pay rental and an implied contract to pay reasonable rental in existence at the same time.
The appellee contends that, in view of the admission in the answer that the appellants are liable for an agreed rent, the court could properly enter a judgment for that amount of rent which the appellants admitted owing and then proceed to hear the rest of the case without any prejudice to the rights of the appellants.
A proper decision of this case requires an interpretation of certain provisions of the Civil Practice Act.
Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1947, chap. 110, par. 181,) provides: "(1) Subject to rules, if, in any action * * * the claimant shall file an affidavit or affidavits, on affiant's personal knowledge, of the truth of the facts upon which the complaint or counterclaim is based and the amount claimed (if any) over and above all just deductions, credits, and set-offs (if any) the court shall, upon motion, enter a judgment or decree for the relief demanded, unless the opposing party shall, by affidavit filed prior to or at the time of the hearing on the motion, show that he has a sufficiently good defense on the merits to all or some part of the claim to entitle him to defend. If the defense is to a part only of the demand, a judgment or decree may be entered, and an execution or other suitable writ issued, for the portion of the demand or relief as to which no defense is interposed, and the case shall thereafter proceed as to the portion of the demand in dispute as though the action or counterclaim had been originally brought therefor; and in such case the court may make such order as to costs of the suit as may be equitable."
Section 45 of the act (Ill. Rev. Stat. 1947, chap. 110, par. 169,) provides: "(1) All objections to pleadings heretofore raised by demurrer shall be raised by motion. Such motion shall point out specifically the defects complained of, and shall ask for such relief as the nature of the defects may make appropriate, such as the dismissal of the action or the entry of a judgment where a pleading is substantially insufficient in law, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.
"(2) Where a pleading or a division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein such pleading or division thereof is insufficient.
"(3) After rulings on motions, the court may make such orders as to pleading over or amending as may be just."
Section 40 of the act (par. 164,) provides: "(1) General issues shall not be employed, and every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.
"(2) Every allegation, except allegations of damages, not explicitly denied shall be deemed to be admitted, unless the party shall state in his pleading that he has no knowledge thereof sufficient to form a belief, and shall attach an affidavit of the truth of such statement of want of knowledge, or unless the party has had no opportunity to deny.
"(3) Denials must not be evasive, but must fairly answer the substance of the allegation denied.
"(4) If a party wishes to raise an issue as to the amount of damages only, he may do so by stating in his pleading that he desires to contest only the amount of the damages."
Section 43 of the act (par. 167,) provides: "(4) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of non-delivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the plaintiff's complaint, or the defendant's counterclaim, in whole or in part, and any ground or defense, whether affirmative or not, which if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply."
As stated above, the appellee's complaint seeks the recovery for reasonable rent and for damages for wilfully holding over. The pertinent allegations of the complaint are contained in paragraphs 13, 14, 15 and 16 thereof. Paragraph 13 alleged that upon the expiration of their written lease on September 30, 1946, the defendants failed to vacate said premises and wilfully, wrongfully, unlawfully and knowingly and without any claim of right, forcibly retained and held possession of the premises from October 1, 1946, to July 14, 1947. The defendants answered this allegation by paragraph 13 of their answer wherein they admitted that on the expiration of the lease they failed to vacate said premises and answered that said defendant, Watson Bros. Transportation Company, Inc., "Denies each and every allegation contained in said paragraph." Their paragraph 13 also contained further allegations of affirmative defense wherein they stated that as a further answer to paragraph 13 they were in lawful possession of the premises by reason of an oral agreement between the appellee and the appellants whereby the appellants were to be permitted to remain in possession for nine months from October 1, 1946, to June 30, 1947, at a monthly rental of $850 per month. They also alleged in that paragraph that the validity of this oral leasing was involved in a prior action between the parties pending in the district ...