Appeal from the Circuit Court of Cook county; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Reversed and remanded
for further proceedings.
PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Plaintiff, a resident of New York, filed an action for breach of a written contract, against Maria Caligeropolous Meneghini, an opera singer professionally known as Maria Callas and a citizen of the United States but residing in Italy. Defendant Callas was personally served with process in Cook County, Illinois. Joined with her as original parties defendant were The Lyric Theatre of Chicago, an Illinois corporation, and Capitol Records Distributing Company and Angel Records a division of Electrical and Musical Industries, Ltd., both foreign corporations.
Defendant Callas filed a special appearance contesting the jurisdiction of the court. Capitol Records answered admitting that it is a foreign corporation authorized to do business in Illinois and that it sells and distributes records containing operatic arias recorded by defendant Callas, but denies that it has contractual relations with defendant Callas and that there were moneys due her. Lyric Theatre filed a motion to dismiss the complaint pursuant to sections 7 and 48 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, §§ 131, 172; Jones Ill. Stats. Ann. 104.007, 104.048]. Subsequently by agreement an order was entered dismissing defendant Lyric Theatre and Electrical and Musical Industries and on the same day that these parties were dismissed the court dismissed the complaint. Plaintiff appeals.
The material allegations of the complaint are as follows: Plaintiff, an attorney with wide experience in the theatrical profession, met defendant Callas in 1945. She was then residing in New York City. At the request of defendant Callas plaintiff's wife, an experienced "voice coach" gave her voice lessons for a period of approximately eighteen months. In 1947 plaintiff "arranged to launch" the career of defendant Callas as an opera singer and "in furtherance" of her career plaintiff expended about $85,000.
July 13, 1947 plaintiff and defendant executed a written agreement which provided in substance that plaintiff was to be defendant's exclusive theatrical agent for a period of ten years with compensation of ten per cent of the gross fees subject to certain deductions not material here. Shortly after executing the agreement defendant left for Europe and has not returned to the continental limits of the United States except for an engagement at Chicago, Illinois, where she has agreed to appear under the auspices of the Lyric Theatre during the month of November 1955; that renditions of various operatic arias are being sold and distributed within this jurisdiction by Capitol Records and Angel Records, for which sums of money are due defendant.
The complaint further alleges that defendant remained out of the United States for the purpose of avoiding process, and that she has refused to carry out the terms of the written agreement.
The prayer of the complaint asks that the court declare the written agreement between the parties to be valid, and for an accounting to plaintiff for all moneys and property received by defendant; and that defendant, her agents and attorneys, be restrained from contracting for services or accepting any engagements in any form of theatrical enterprise unless such engagement is approved by plaintiff.
A memorandum opinion filed by the trial court stated the following grounds for dismissing the complaint: (1) That the venue in this action is not properly in this forum by virtue of the provisions of the Illinois Venue Act; (2) That plaintiff is not deprived of any constitutional right; and (3) That the cause of action comes within the doctrine of forum non conveniens.
No affidavits or pleadings were filed by defendant Callas except the special appearance, nor did she adopt the motion of the Lyric Theatre to dismiss. In making its ruling the court appears to have considered the motion and affidavit filed by the Lyric Theatre of Chicago challenging the jurisdiction of the court.
The basic issue presented is whether proper venue for plaintiff's action is in Cook County. The pertinent provision of Section 131, Chapter 110, Illinois Revised Statutes 1953, State Bar Edition, reads: "Every civil action shall be commenced in the county . . . in which the transaction or some part thereof occurred out of which the cause of action arose. . . ."
The foregoing provision of Section 131 was first construed by this court in La Ham v. Sterling Canning Co., Inc., 321 Ill. App. 32. In that case plaintiff La Ham, a resident of Winneconne, Wisconsin, filed his complaint in the Circuit Court of Cook County, Illinois against Sterling Canning Company, an Illinois corporation having its principal office in Sterling, Whiteside County, Illinois, John W. and John C. Thrall, residents of Winneconne, Wisconsin, Douglas H. Thrall a resident of Rock Falls, Whiteside County, Illinois, and two other defendants residents of Wisconsin, seeking to establish himself as the owner of one-third of the shares of the Canning Company alleged to have been acquired by purchase with funds contributed in equal parts by him and John W. and Douglas H. Thrall pursuant to an oral agreement entered into in Winneconne, Wisconsin. John W. and Douglas Thrall appeared specially to contest the jurisdiction of the court on the ground that the principal office of the Canning Company was in Whiteside County, that none of the defendants resided in Cook County, and that no part of the transaction out of which the plaintiff alleges his cause of action arose occurred in Cook County but that the transaction occurred at Sterling, Illinois or Winneconne, Wisconsin.
The question presented there was whether the court properly ruled that that part of the transaction out of which the cause of action arose occurred in Cook County. It appears that the only part of the transaction alleged to have occurred in Cook County related to the acquisition of the Canning Company in Chicago, where negotiations between the plaintiff and the Thralls took place. The wrongful acts alleged occurred after the purchase of the Company and took place either in Sterling, Illinois, or Wisconsin. Plaintiff argued that the "transaction" embraces the entire series of transactions and if any of them occurred in Cook County the court had jurisdiction. The court said, at page 44:
"The word `transaction' in the statute is modified by the phrase `out of which the cause of action arose' and if no cause of action can be said to have arisen out of any of the events that occurred in Cook County, all of which were perfectly amicable and in accordance with the agreement of the parties, then no part of the transaction can be said to have occurred here within the meaning of the statute."
Continuing further, the court in adverting to Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 ...