Ogden v. Duffy, 59 Ill. App. 120 (1895)

May 28, 1895 · Illinois Appellate Court

59 Ill. App. 120

E. J. Ogden et al. v. John A. Duffy et al.

1. Fbaud—Belief in Equity—Parties.—Where a lessee of premises for a term, at a fixed rent, sold out his business, and represented to the vendees that they were to have the building at the same rent, which said lessee represented was §65 per month, upon which representation the lessee paid considerable sums of money to' a nominal assignee of the lease, and was induced to enter into a lease with the vendor to pay rent at said rate upon the fraudulent representations that he was paying rent at that rate, when in fact he was only paying at the rate of $50 per month, it was held, that the parties receiving such over-paid amounts were in equity bound to refund the same.

Bill for Injunction and Relief.—Error to the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1894.

Affirmed.

Opinion filed May 28, 1895.

Haley & O’Donnell, attorneys for plaintiffs in error.

Fithian & Heise, attorneys for defendants in error, Duffy & Co.

Meeks & Downey, attorneys for defendant in error, Henry Young.

Me. Presiding Justice Lacey

delivered the opinion of

the Court.

Prior- to September 9, 1892, the Joliet Merchant Tailoring Co. was conducting the business of merchant tailoring in the city of Joliet. Some time previous to that date, negotiations were had between said company and J. A. Duffy and John Eaible, partners as J. A. Duffy & Co., which resulted in the sale of the stock of the said company to the latter named firm for the sum of $2,510. At the time that the tailoring company rented the building from Henry Young, a cross-complainant in this case, the store building was in a bad condition, a restaurant having been kept in it. The Joliet Tailoring Co. had rented the building of Henry Young for $50 per month for two years, with a privilege of an additional three years upon the same condition. The bill in this case alleges that it was claimed by the Joliet Merchant Tailoring Co. and represented to appellees, that they were to have the rent of the building at the same rate which it paid, which they claimed was $65 per month, and on those representations had paid considerable sums of money to the plaintiffs in error, nominal assignees of the lease, at the rate of $65 per month, and the appellees were induced to enter into a lease with the Joliet Merchant Tailoring,Co., to pay rent to them at the rate of $65 per month, on the-fraudulent representations that the latter was paying that sum. This bill was filed by appellee against E. C. and E. J. Ogden and the Joliet Merchant Tailoring Co. for an injunction restraining the further prosecution of the cause before a justice of the peace, wherein E. J. Ogden was nominally plaintiff and appellees defendants in distress for rent, and from commencing and prosecuting any other proceedings of any kind against appellees to collect rent for the store-room in question until the further order of the court. The case came to a hearing on the evidence, and the court found the equities in favor of the complainants. It was a question of fact as to whether appellees’ contention was correct. The appellees’ bill was to restrain a prosecution of a distress suit, and to compel the repayment of the amount over-paid. The court found for appellees, and we think it was fully justified in doing so.

The decree to refund the over-paid rental was also correct, it being paid under protest. The assignment of the lease of appellee to E. J. Ogden was without consideration, and the money having been paid to Ogden wrongfully by appellees, he was equitably bound to repay it to them.

The decree therefor against the assignee as well as against assignor was correct. The evidence in our judgment fully sustains the decree and it is affirmed.