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Hareas v. Kyriakopoulos

OPINION FILED AUGUST 14, 1981.

NICK HAREAS, PLAINTIFF-APPELLEE,

v.

BILL G. KYRIAKOPOULOS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD ROSENBERG, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 19, 1981.

Plaintiff (lessor) brought an action for forcible entry and detainer of commercial property pursuant to "An Act in regard to forcible entry and detainer" (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) against defendants (lessees) for nonpayment of rent. Following a bench trial the court entered judgment for possession in favor of the plaintiff. The execution was stayed pending defendants' appeal of the trial court's order.

The issues presented for review are: (1) whether the trial court erred in finding that plaintiff was entitled to possession; and (2) whether the alleged equitable defense asserted by defendants was applicable. The following facts are undisputed.

Defendants have owned and operated a restaurant business located at 48 North Wells Street, Chicago, since April 26, 1968, which they have occupied pursuant to a written lease. The lease waives notice and will expire December 31, 1982. Defendants testified that over the last 2 1/2 years they have made approximately $17,000 in improvements to the property.

Plaintiff purchased the building in 1978. At trial, he testified that he did not receive the August rent check on August 1, 1980; that when he had not received it by August 7, he instructed his lawyer to file an action seeking possession of the premises. A complaint was filed on August 7, 1980. No answer nor counterclaim of defendants is included in the record.

Plaintiff further testified that on August 12 he received a check in the mail from the defendants but that the check was dated August 30, 1980. Plaintiff identified an envelope postmarked August 12 as that in which the check arrived.

Tom Kyriakopoulos, called by defendants, identified the check as the one he sent but denied that the envelope bearing the August 12 postmark was the one in which the check was sent. He claimed the writing on the envelope was not his. He further testified that he made out a check for the August rent on July 30, 1980, in the amount of $1000 inadvertently dating the check 8/30/80, rather than 7/30/80. He testified that he mailed the check on July 30, 1980, properly addressed and stamped to the plaintiff at plaintiff's address, 80 East Randolph Street, Chicago. Kyriakopoulos testified that he discovered the error four or five days later but did not mail plaintiff another check.

Kyriakopoulos produced his checkbook from his restaurant. Upon inspection of the check register the court noted for the record that the check in question, No. 587, was preceded by No. 586, a voided check also made out to plaintiff, and check No. 585, which bore the date July 28.

The court concluded that the check register belied that Kyriakopoulos made a mistake in postdating the check but rather did so intentionally. The check register was never entered into evidence and thus is not part of the record.

The court then found for plaintiff after considering all of the testimony and evidence presented.

OPINION

Both defendants and plaintiff agree that intent is not an element mentioned in the forcible entry and detainer act and therefore need not be proved to establish such an action. Defendants assert, however, that since the court considered intent when ruling it should also have "implied" that defendants' payment was not intentionally late but was the result of a mistake. Plaintiff counters that if intent is an unnecessary element to be proved, mistake is an irrelevant defense. Further, that even if relevant the court found that the postdating of the check in question was not a mistake, but an intentional act.

The purpose of the forcible entry and detainer act is to provide a "summary statutory proceeding to adjudicate rights to possession * * * unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession." (Bleck v. Cosgrove (1961), 32 Ill. App.2d 267, 177 N.E.2d 647.) Furthermore, in those cases where the right to possession is asserted solely by reason of nonpayment of rent, whether rent is due and owing ...


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