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05/28/87 Frank Partipilo, v. Elmer J. Hallman

May 28, 1987

FRANK PARTIPILO, PLAINTIFF-APPELLEE

v.

ELMER J. HALLMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

510 N.E.2d 8, 156 Ill. App. 3d 806, 109 Ill. Dec. 387 1987.IL.690

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. LINN., J., concurs. JUSTICE JOHNSON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

As the result of an error of the Cook County assessor's office, certain improvements located on the property of the defendant, Elmer J. Hallman, were assessed as part of the adjoining property of the plaintiff, Frank Partipilo. Before discovering the error, Partipilo paid $26,467.10 in real estate taxes which should have been assessed against Hallman. Partipilo then brought this action to recover the amount of the overassessment on the theory of unjust enrichment. On cross-motions for summary judgment, the trial court entered a money judgment in favor of Partipilo. Hallman appeals, contending primarily that the theory of unjust enrichment does not support recovery in the instant cause.

The facts are not in dispute. Partipilo was the owner of a parcel of real estate in the city of Chicago adjoining Hallman's property. For the tax years 1977, 1978, and 1979 the Cook County assessor's office mistakenly included a building, portions of a driveway, and a fence in its assessment of the Partipilo property when these improvements were in fact located on the Hallman property. As a result, the Partipilo property was overassessed and the Hallman property under-assessed by the same amount, $26,467.10. Partipilo paid the taxes for those years and judgment was subsequently entered in favor of Partipilo and against Hallman for that amount.

In arguing that he had a right to recover the amount of the over-assessment, Partipilo relies upon the general proposition that a person shall not enrich himself at another's expense. This proposition is contained in the Restatement of Restitution, which states that "[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other." (Restatement of Restitution sec. 1, at 12 (1937).) In this vein, section 43 of the Restatement of Restitution states as follows:

"Sec. 43. Performance of Another's Duty or Discharge of Lien Against His Property.

(1) A person who, by payment to a third person, has discharged the duty of another or has released another's property from an adverse interest, doing so unintentionally or acting because of an erroneous belief induced by a mistake of fact that he was thereby discharging a duty of his own or releasing property of his own from a lien, is entitled to restitution from such other of the value of the benefit conferred up to the value of what was given, unless the other disclaims the transaction." (Restatement of Restitution sec. 43, at 172 (1937).)

To illustrate this proposition, the Restatement of Restitution includes the following example, which appears pertinent to the issue in the case at bar:

"A receives from the collector of taxes a notification of taxes due, describing lot X which is owned by B. Believing that it describes lot Y owned by him, A pays the tax. A is entitled to restitution from B." (Restatement of Restitution sec. 43, at 176 (1937).)

See also 1 A. Corbin, Contracts sec. 19, at 47 (1963).

In order to achieve the result suggested in the Restatement of Restitution, Illinois courts have implied a contract in law based upon the defendant's receipt of a benefit which would be unjust for him to retain without paying for it. (Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164, 174, 97 N.E. 280, 285; Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069, 1075; Dickerson Realtors, Inc. v. Frewert (1974), 16 Ill. App. 3d 1060, 1063-64, 307 N.E.2d 445, 448.) All of these cases stand for the general ...


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