APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
REVISED OPINION UPON DENIAL OF PETITION FOR REHEARING
This is an action for damages for breach of the covenant for quiet enjoyment of premises, conversion and trespass. The motion of defendants Oak Park Trust and Savings Bank, a corporation as Executor of the Estate of Joseph Cienki, deceased, and Cienki, Inc., a Delaware Corporation to strike and dismiss the second amended and supplemental complaint was granted and suit was dismissed as to these defendants, the court finding, pursuant to Supreme Court Rule 303, that there was no just reason for delaying enforcement or appeal. Plaintiff has filed this appeal from the lower court's order granting dismissal.
The complaint contains 7 counts and the sole issue before us is whether a cause of action is stated in any of them. To make this determination we turn to the complaint alone and bear in mind the burden is on the movant to show that the complaint fails to state a claim.
The basic facts alleged in the second amended supplemental complaint and underlying each count are as follows:
The plaintiffs purchased from the defendant Chamopoulos June 21, 1963, a restaurant business located on the premises of 2000 North Lincoln Parkway West, Chicago, Illinois, including chattels, improvements, equipment and good will for the sum of $42,000.00. $18,000.00 was paid on said date and the balance of $24,000.00 evidenced by a note payable in installments of $663.49 per month beginning August 1, 1963 and secured by a security agreement in the nature of a chattel mortgage and a finance statement filed with the Secretary of State, State of Illinois, under the provisions of the Uniform Commercial code.
At the time of the purchase of the restaurant and equipment, the plaintiffs entered into a lease dated June 21, 1963, in which Cienki, Inc., a Delaware corporation, licensed to do business in Illinois, was the Lessor and plaintiffs were Lessees. The term of the lease commenced on July 1, 1963, and expires December 31, 1973. This lease was assigned to Chamopoulos as security with the consent of the Lessor, Cienki, Inc.
The Plaintiffs further became obligated to Chamopoulos in the amount of $1,500.00 for advance of monies to Cienki who required a bonus for his cooperation.
The sum of $3,720.00 had been deposited by Chamopoulos, as a rent deposit, with Cienki, Inc. which deposit was assigned to plaintiffs, who gave their note in such amount to Chamopoulos.
The value of the chattels conveyed by Chamopoulos to plaintiffs in the transaction were of slight value compared to total purchase price of $42,000.00 so that most of said purchase price was attributable to good will connected with the business in its location and that plaintiffs could only recoup their investment substantially over the whole of the term of the lease.
The good will acquired by the plaintiffs uniquely attached to the location of the premises and without the facilities thereto engagement in such business was substantially worthless. The demised premises were on the ground floor and attached to a five-story hotel located at the corner of West Armitage and North Lincoln Parkway fronting upon Armitage.
Fires broke out in the demised premises on September 5, 1963, and September 7, 1963, causing slight damage to the demised premises but damage to the hotel being less than the whole destruction thereof.
A contractor hired by the plaintiffs estimated that the repairs could be made in a short while for a sum of $2,100.00 and the premises restored as there was no structural damage thereto, but only minor repairs to ceiling, canopys and dining room ducts.
The cost of repairing the hotel structure annexed to the restaurant premises was estimated at $60,000.00 which expenditure represented a small portion of the value of the ...