APPEAL from Circuit Court of Cook County; the Hon. JAMES A.
ZAFIRATOS, Judge, presiding.
MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Defendant brings this appeal following a jury trial in which a verdict was entered granting possession of the subject premises to plaintiff. Plaintiff has cross-appealed seeking reversal of the judgment awarding $5,000 in damages to defendant-counterplaintiff.
Plaintiff filed this forcible entry and detainer action to gain possession of a certain gasoline station premises occupied by defendant. Defendant filed affirmative defenses and a counterclaim which included alleged violations of the Illinois antitrust laws and the unlawful withholding of $6,200 in robbery-insurance proceeds.
On appeal, defendant alleges that the trial court erred in striking the affirmative defenses and counterclaim allegations relating to the Illinois antitrust laws. Plaintiff's cross-appeal seeks reversal of the judgment awarding defendant damages on the counterclaim, alleging that there was no evidence against plaintiff to support the verdict. Plaintiff has also moved to dismiss defendant's appeal because defendant failed specifically to request a new trial in his post-trial motion and now seeks that remedy through this appeal.
The facts in this case show that plaintiff is a refiner of gasoline products which it markets to retail dealers who sell to the public. Defendant was a retail service station dealer who leased a Clark service station under a 1-year lease. The lease was dated August 31, 1972, and covered the premises at issue in this suit. Plaintiff and defendant also entered into a 1-year retail dealer consignment agreement dated August 31, 1972, under which plaintiff agreed to supply defendant with gasoline. Under the terms of the lease, rent was to be paid in a sum of 2 cents per gallon for each gallon of gasoline sold from the premises each day. The rent was to be remitted each day, except Saturday and Sunday, for the previous day's business.
The record shows that defendant was delinquent in his remittance of payments for consigned products and rent for most of the month of January, 1973. He failed to remit on a daily basis from January 1 until January 11. Defendant also failed to remit money due from January 11 to January 23, except for $691.03 due for January 19, which amount was tendered in cash to plaintiff's assistant district manager. Defendant's total delinquency from January 11 to January 23 amounted to approximately $9,000.
In explanation of his delinquencies, defendant claimed that he sustained two robberies during January, 1973. As a result of the robberies, defendant allegedly sustained losses of $6,200 for which he made claim to his independent insurance carrier.
On January 22, 1973, defendant assigned any proceeds he might receive under his insurance claims to plaintiff to be applied toward monies due to it. On January 22, defendant also acknowledged, in writing, that he was indebted to plaintiff in the amount of $7,741.96 for consigned gasoline products. He promised to pay the amount due by the next day.
On January 23, 1973, defendant failed to make any further payments of monies he owed plaintiff. Accordingly, plaintiff tendered a letter to defendant stating that it was exercising its option to terminate defendant's lease and re-enter the premises because defendant had not made the daily payments due for consigned products and rents. Defendant agreed to return possession of the service station premises to plaintiff. Later that day, a new dealer, Raymond Howard, was installed. Defendant turned over the keys to the service station to the new dealer, and plaintiff's representatives left the premises.
The next day, January 24, 1973, John Cammack, plaintiff's assistant district manager, received a phone call from defendant who stated that he had not, in fact, given up the station. When Cammack went to the station later that afternoon, defendant was back in possession of the station and the new dealer was not to be found.
Plaintiff then instituted this action to regain possession of its service station.
In his answer, defendant denied the allegations of the complaint and affirmatively alleged that defendant occupied the premises under an expired lease; that plaintiff's alleged policy of operating a gasoline retail outlet is in violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1973, ch. 38, par. 60-1 et seq.); that plaintiff's attempted eviction of defendant was in retaliation for his refusal to conspire with plaintiff to violate the Illinois antitrust laws in various unspecified ways, including claimed retail price fixing and exclusive dealing; that plaintiff's alleged conduct in retaliation for defendant's refusal to conspire with plaintiff to violate the Illinois antitrust laws was contrary to public policy; and that the relationship between the parties was not one of landlord-tenant subject to Illinois eviction law, but rather was that of joint adventurers or franchisee.
Defendant's counterclaim incorporated by reference the allegations of his answer and affirmative defenses and alleged that in violation of the Illinois antitrust laws plaintiff coerced defendant into unlawfully fixing the retail price of plaintiff's products and required defendant to purchase from suppliers which plaintiff had designated; that plaintiff used the lease of its service station and the threat of non-renewal to coerce defendant into participating in the claimed unlawful conduct, thereby placing him at a competitive disadvantage. Defendant claimed injury in the amount of $50,000. Defendant also alleged that he was required to purchase robbery insurance from an agency that works closely with plaintiff; that he had losses totaling $6,200 which were covered by the insurance; that he submitted "proofs of loss" but that plaintiff never accounted to him for the $6,200 loss allegedly covered by the insurance.
Plaintiff subsequently moved to strike the affirmative defenses and the counterclaim as not cognizable in law and not germane to the issues in the forcible entry and detainer action. After hearing arguments, the court struck the affirmative defenses relating to alleged violations of the Illinois antitrust laws and the claimed joint adventurer-franchisee-hold-over tenant status. The remainder of the counterclaim contained allegations that plaintiff had not accounted for or paid defendant the $6,200 in robbery insurance proceeds and that ...