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Kirby v. Chicago City Bk. & Trust Co.

OPINION FILED APRIL 9, 1980.

JACK KIRBY, PLAINTIFF-APPELLANT,

v.

CHICAGO CITY BANK AND TRUST COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HAROLD M. NUDELMAN, Judge, presiding.

MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

This action was brought by Jack Kirby, plaintiff, against the Chicago City Bank and Trust Company, defendant, to recover damages resulting from the defendant's breach of an alleged bailment agreement. The plaintiff's original, first, second and third amended complaints were stricken pursuant to the defendant's motion to dismiss for failure to state a cause of action. The plaintiff elected to stand on his third amended complaint and presented a motion to vacate the order dismissing his third amended complaint. The Circuit Court of Cook County denied the plaintiff's motion, discharged the defendant and dismissed the plaintiff's lawsuit. The plaintiff appeals from this order.

The sole issue presented for review is whether the plaintiff's third amended complaint stated a cause of action upon which relief could be granted.

Count I of the plaintiff's third amended complaint alleged the creation of a bailment for the mutual benefit of the parties. The relevant portions of that count are as follows:

"1. That the Defendant, Chicago City Bank & Trust Co., is a banking institution engaged in the business of providing banking services to the general public for a profit, and one of the services rendered by the Defendant is the safe keeping of documents and notes for bank customers.

2. That the defendant [sic] was a customer of Chicago City Bank & Trust Company, and Plaintiff did conduct numerous business transactions at the Defendant institution; the Defendant receiving fees and profits from the business transaction by Plaintiff at the Defendant institution.

3. That the Plaintiff did have in his possession, a bearer note in the original sum of $215,000.00 and that the Plaintiff did, on or about January 11, 1968, forward said note to the Defendant for safe keeping * * *

4. That upon the deposit of the note with the Defendant, there did arise a mutual bailment for the benefit of both parties, and the Defendant did owe a duty of care to the Plaintiff to exercise ordinary and reasonable care for the safe keeping of said note.

5. That Defendant negligently failed to safely and securely keep said article; and, by reason of such negligency [sic], said note was lost.

7. Demand was made on the Defendant for delivery of said note; however, said Defendant insisted at that time and persists that it does not have possession of said note although Plaintiff does again affirmatively state that delivery was made to the Defendant of the note on or about January 11, 1968."

Count II of the third amended complaint alleged the creation of a bailment for the sole benefit of the plaintiff. Paragraphs 1 through 8 were restated and realleged with the exception of paragraph 4, which stated:

"4 That upon the deposit of the note with the Defendant there did arise a bailment for the sole benefit of the Plaintiff and the Defendant did owe a duty of slight care, including the duty to return the subject note upon request to the Plaintiff."

The defendant contends that the plaintiff's third amended complaint failed to state a cause of action since it did not allege the necessary elements to create a bailment and to establish its breach.

Section 31 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 31) requires that pleadings contain substantial averments of fact necessary to state a cause of action. A motion to dismiss admits as true all properly pleaded allegations and well-pleaded facts, whereas conclusions of law or conclusions of fact unsupported by allegations of specific facts are never admitted by a motion to dismiss. (Pollack v. Marathon Oil Co. (1976), 34 Ill. App.3d 861, 341 N.E.2d 101. See Pennington v. Jones (1977), 46 Ill. App.3d 65, 360 N.E.2d 566.) Although pleadings should be liberally construed in order to effectuate substantial justice between the parties (Ill. Rev. Stat. 1977, ch. 110, par. 33), liberal construction cannot supply fatal deficiencies, ...


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