Opposition Brief — Kordewick v. Indiana Harbor Belt Railroad

Opinion Below .

Jurisdiction ............

Question Presented

Statement of the Case

Summary of Argument

ARGUMENT.

I,

The Cireuit Court of Appeals followed correctly the

applicable Illinois law

- J

Il.

The decision of the Circuit Court of Appeals does not

bar any suit brought within the time fixed by stat-

RR ee ee oe

APPENDIX,

Opinion of Court, Richey v. Northwestern University,

323 Ll. App. 293

Opinion of Court, Ellithorpe v. Holmes, 305 Tl. App.

625

EERE ERROR E EEE ERE EEE EEE RE EEE EERE OEE EE EEE eee

FARRER RRR ERROR EERO ERE E EEE EERE SETHE HEE EERE EEE EROS ESE E EEE Sa een eseeeeeeeneees

TABLE OF AUTHORITIES,

Cases.

Cherry v. Aetna Casualty & Surety Co., 372 Ill. 534,

25 N. E. 2d 11.

Conductors’ Benefit Ass’n v. Tucker, 157 Ill. 194

& dod bw

13

15

19

il

Economy Fuse & Mfg. Co. v. Raymond Concrete Pile

ee A Sr ee er ce oN eS 9

Ellithorpe v. Holmes, 305 Tll. App. 625.200.0000... 7,11

Erie v. Tompkins, 304 U. 8. 64 5

Gronowski v. Jozefowiez, 291 Ill. 266.200.0000. 7

Huddleston v. Dwyer, 322 U. S. 282... 12

Jacksonville Hotel Bldg. Corp. v. Dunlap Hotel Co.,

I Ie I I ate arriciient dan icladeeh cede niomeenieadoaeanee 7

Moore vy. Illinois Central Railroad Co., 312 U. S. 630. 5

Mowatt v. City of Chicago, 292 Il. 578.0000. 6,7,9

Murphy v. Cicero Lumber Co., 97 Ill. App. 510.......... 7

Novosk v. Reznick, 323 Ill. App. 544 6, 7,9

Orminski v, Hyland Electrical Supply Co., 326 TIl.

PIN SUI sei tieecepotcnhicectecep inthe tnbioncntenaticiinsnacsicilia 6, 10

Richey v. Northwestern University, 323 Ill. App. 293..7, 11

Rittenhouse & Embree Co, v. Barry, 98 Ill. App. 548..7, 11

Sachs v. Ohio Nat. Life Ins. Co., 148 F. 2d 128..0......... 10

Speich v. A. T, & Santa Fe Ry. Co., 178 Tl. App. 266.. 7

The Railway Passenger and Conductors’ Benefit

Ty oe es ee eh

Tinley v. City of Chicago, 134 F. 2d 682, certiorari

RE I Rs FOR aN 10

West v. American Tel. and Tel. Co., 311 U. S, 223...... 5

Wright v. Bankers Service Corp., 39 Fed. Supp. 980.. 12

Text Books.

Moore’s Federal Practice, Vol. 1, p. 597........2.0.20.-20.00-- 12

Moore’s Federal Practice, Vol. 4, p. 171.020.2220... 12

Statutes.

Ill, Rev. Stat. 1945, Ch. 83, Sec. 16.........................-...0 5

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1946.

No. 754

W. G. KORDEWICK, HENRY POTRAFKE, LAWRENCE E. PECOR,

WALTER H. MILLER, B. J. BELLAND, C. T. JEWELL, W. F.

CARLSON, HEATHER BROWN, W. T. GRAHAM, J. W. ROSS, R. B.

LOGAN, J. E. FENNELL, E. D. GIBBS, WILLIAM C. WASSNER,

CLARENCE €E. BENSON, A. J. FALSTER, J. H. MAHER, W. D.

HULL, J. A. RICHERME, B. J. HAINSWORTH, BEADY HINES,

L. D. WHITWORTH, M. F. HOLOBOWSKI, LEO LA BEAU, H.

PROUE, T. W. BRIGGS, W. H. WILDE, S&S. W. SLUSSER and JAMES

HULL,

Petitioners,

vs.

INDIANA HARBOR BELT RAILROAD COMPANY, a corporation,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

THE PETITION FOR CERTIORARI.

OPINION BELOW.

The opinion of the United States Cireuit Court of Ap-

peals for the Seventh Circuit, filed October 19, 1946, ap-

pears in the printed record (pp. 30-33). This opinion was

released on November 18, 1946 for publication. It has not

yet been reported.

JURISDICTION.

Petitioners are seeking to invoke the jurisdiction of

this Court under Section 240 (a) of the Judicial Code as

amended by the Act of February 18, 1925 (C. 229, See. 1,

43 Stat. 19388; U. S. Code, Title 28, See. 347).

QUESTION PRESENTED.

The question presented is whether the Seventh Circuit

Court of Appeals followed the applicable Illinois law in

holding that Petitioners’ alleged cause of action was

barred by the Illinois five-year statute of limitations.

STATEMENT OF THE CASE.

Petitioners have requested a writ of certiorari to re-

view a decision of the United States Cireuit Court of

Appeals for the Seventh Cireuit, which affirmed an order

of the United States District Court, for the Northern Dis-

trict of Illinois, Eastern Division, dismissing this cause

on motion of Respondent for failure to state a cause of

action entitling the Petitioners to relief (R. 20).

This action, which was filed in the District Court on

November 9, 1945, was brought for an accounting and

money decree for sums claimed by Petitioners because of

Respondent’s alleged violation of a labor agreement.

Federal jurisdiction was predicated upon diversity of

citizenship (R. 2, 3). In substance, the claim of Peti-

tioners is that Respondent in some unspecified way vio-

lated the provisions of the Chicago Memorandum of

Agreement, a written agreement pertaining to wages,

hours and working conditions, entered into between the

General Managers’ Committee representing various rail-

—

3

road corporations and the Brotltrhood of Railroad Train-

men, of which Petitioners were members (R. 2, 3). Peti-

tioners averred that the alleged violations began on Au-

gust 13, 1926 and ended on December 12, 1938 (R. 5).

Petitioners apparently claim that as a result of Respon-

dent’s alleged violations, some of them were at unspeci-

fied times deprived of ‘‘a minimum day”’ and that others

were required in addition to their own work to perform

the work of those Petitioners who were deprived of their

‘‘minimum day’? (R. 4). Petitioners’ demand appears to

be that certain of them be paid a full day’s pay for every

day ‘“‘lost’’? on which they performed no work, and that

others in addition to pay already received by them for

their work be paid an additional day’s pay at the rate

of time and one-half for those days on which the other

Petitioners were deprived of their ‘‘minimum day’’ (R.

4, 5).

SUMMARY OF ARGUMENT.

I.

The only question presented by the petition is whether

the Seventh Circuit Court of Appeals followed the applic-

able Illinois law as determined by the decisions of IIli-

nois courts. It is conceded that Illinois law is controlling.

The applicable Illinois law has been declared authorita-

tively by the decisions of state courts, and such decisions

were followed, correctly, by the Cireuit Court of Appeals.

Under such circumstances this court will not grant a

further review.

II.

The decisive question of local law involved is whether

the Illinois five or ten year limitations statute is applica-

ble. It has long been established by Illinois decisions that

claims of the type presented by petitioners are subject

to the five year statute. The decision of the Circuit Court

of Appeals does not bar any employees from exercising

their rights to institute suits against their employers

within apt time. Its sole effect is to bar a suit on an

alleged cause of action arising under Illinois law which

was not brought within the time limit prescribed by

statute in Illinois.

I.

The only point raised in the petition is whether the

Seventh Circuit Court of Appeals followed the applicable

Illinois law in its decision. The statute involved is Sec-

tion 15 of the Illinois Limitations Act (Ill. Rev. Stat. 1945,

Ch. 83, Sec. 16), which reads:

‘Actions on unwritten contracts, expressed or im-

plied, or on awards of arbitration, or to recover

damages for an injury done to property, real or per-

sonal, or to recover the possession of personal prop-

erty or damages for the detention or conversion

thereof, and all civil actions not otherwise provided

for, shall be commenced within five years next after

the cause of action acerned,”’

Petitioners concede, as they must, that the Circuit

Court of Appeals was correct in holding that it must

apply the above statute in accordance with the interpreta-

tion given to it by the Illinois courts. Erie v. T ompkins,

204 U. S. 64: Moore v. Illinois Central Railroad Co., 312

U. S. 630. Both the Supreme Court and Appellate Court

of Illinois have passed upon the question presented to the

Cireuit Court of Appeals in this case. The Federal Courts

will follow decisions of the Illinois Appellate Court on

any point upon which the Hlinois Supreme Court has not

passed. West v. American Tel. and Tel. Co., 311 U. 8S.

223.

In holding petitioners’ suit barred by the Illinois five

year limitations statute, the Cireuit Court of Appeals

cited and followed four Illinois decisions: The Railway

Passenger and Conductors’ Benefit Ass’n. v. Loomis, 142

6

Ill. 560; Mowatt v. City of Chicago, 292 Ill. 578; Novosk

v. Reznick, 323 Ill. App. 544; and Orminski v. Hyland

Electrical Supply Co., 326 Ill. App. 392. Petitioners’ ar-

gument in support of their petition is devoted largely to

a vain attempt to distinguish those cases.

Petitioners have not cited any contrary decision nor

any decision in support of their contentions.

It clearly appears from petitioners’ complaint filed in

the District Court that no part of the alleged cause of

action of any of them accrued within five years next be-

fore this action was commenced. Their suit was filed

on November 9, 1945 (R. 2). The last date on which any

violation of the Chicago Memorandum of Agreement by

respondent was claimed in the complaint was December

12, 1938 (R. 4, 5).

A copy of the Chicago Memorandum of Agreement, up-

on which petitioners relied, was attached to their com-

plaint as Exhibit 1 (R. 8). The complaint alleged that

that agreement was ‘‘entered into by and between the

General Managers’ Committee representing various rail-

road corporations and the Brotherhood of Railroad Train-

men.’’ (R. 3). Petitioners are not named in the Chicago

Memorandum of Agreement (R. 8). Parol evidence

would be necessary to show any contractual relationship

between petitioners and respondent. Parol evidence

would be necessary to show that petitioners are or were

at any time employed by respondent. If petitioners were

employed by respondent, parol evidence would be neces-

sary to show that at any pertinent time they were em-

ployed in work of the type covered by the Chicago Mem-

orandum of Agreement. That agreement purports to

cover only rules and rates of pay of vardmen (R. 8).

Parol evidence would be necessary to show that petition-

—_=_—"

7

ers were employed at a place or within a territory to

which the Chicago Memorandum of Agreement was ap-

plicable. That agreement purports to apply only to the

Chicago Switching District (R. 8). With this state of

facts the Illinois cases cited by the Cireuit Court of Ap-

peals make it clear that the Illinois five year limitations

statute is applicable.

The Railway Passenger and Freight Conductors’ Mu-

tual Aid and Benefit Association v. Loomis, 142 Ill. 560.

(1892) is a leading case in Illinois on the question here

involved, and has been cited and followed many times by

Illinois courts.* That was an action hy plaintiff to re-

cover benefits claimed to be due by reason of the death of

her husband. The only question considered by the court

was whether the action was barred by the five year limi-

tation statute. The court pointed out that if there were

a written contract it would consist of the certificate of

membership of plaintiff’s deceased husband and the con-

stitution and by-laws of defendant. The certificate certi-

fied that H. H. Loomis was a member of the association.

It did not mention his wife, the plaintiff, nor did the con-

stitution and by-laws refer to her in any way. In hold-

ing that the action was barred by the five year statute the

court said:

* Among such cases are Conductors’ Benefit Assoc. V.

Tucker, 157 Tl. 194, 205; Gronowski v. Jozefowicz, 291

Ill. 266, 277; Mowatt v. City of Chicago, 292 II. 578,

582; Murphy v. Cicero Lumber Company, 97 Tl. App.

510, 516; Rittenhouse & Embree Co. v. Barry, 98 1.

App. 548, 554; Speich v. A. T. & Santa Fe Ry. Co., 178

Ti. App. 266, 272; Jacksonville Hotel Rida. Corp. v.

Dunlap Hotel Co., 264 MM. App. 279, 323: Ellithorpe v.

Holmes, 305 Til. App. 625 (see Appendix): Richey v.

Northwestern University, 323 Tl. App. 298 (see Ap-

pendix). Novosk v. Reznick, 323 Til. App. 544, 551.

8

“It is clear, therefore that parol testimony must

be resorted to, in order to connect the plaintiff with

the contract as a party thereto. It must be shown by

parol evidence, that Loomis did not leave a will, and

that he did leave a widow, and that plaintiff is his

widow.

A contract cannot be said to be in writing, unless

the parties thereto, as well as the terms and provi-

sions thereof, can be ascertained from the instrument

itself. If the party to a written contract is not named

therein, the contract is defective as containing only

a part of the agreement. In such case, the agreement

is only partly reduced to writing, because parol

proof must be resorted to, in order to show with

whom the bargain was made.’’ (p. 567) * * *

But the constitution and by-laws merely designate

in a general way certain classes of persons, who will

be entitled to the benefit fund upon the death of a

member; and parol evidence must be introduced to

show that the plaintiff belongs to one of the desig-

nated classes. It must be proven by parol, not that

the plaintiff is the particular person named in a cer-

tain writing, but that she possesses the qualifications

which, under the constitution and by-laws, all persons

must possess, who are entitled to receive the benefit

fund. Hence, the written contract here sought to be

set up is defective in necessitating the introduction

of parol testimony in order to make it complete.’’

(pp. 568-569).

Plaintiff in the above case was barred by the five vear

statute because, not being named in the written instru-

ment, she had to show by parol that she possessed the

qualifications to entitle her to the benefit of the contract.

Petitioners in the case at bar must also do that. They

would have to show by parol that they possess the quali-

fications to entitle them to any benefits of the agreement

upon which they rely. They would have to show by parol

the existence of any contractual relationship whatsoever

between them and respondent.

——_—_

9

In Mowatt v. City of Chicago, 292 Ill. 578, discussed

by petitioners (p. 8), the court held that conceding the

action to be based on the ordinance in question, the con-

tract was an oral one, as to the Statute of Limitations,

because parol evidence was necessary to show that there

could be a recovery under the ordinance, saying:

“This court has held that a written contract is

one in which all of its terms are in writing; that a

contract partly in writing and partly oral is in legal

effect an oral contract. If parol evidence must be in-

troduced to sustain the action the contract is not in

writing under this statute’’ (p. 582).

In that case the oral testimony necessary was to show

that the ordinance in question had been accepted by plain-

tiff; that the money had been paid to the City as pro-

vided therein, and that the five year statute of limita-

tions had run against claims for damages against the City

as to persons claiming injury from the vacation of the

alley.

As pointed out by the Cireuit Court of Appeals (R. 31)

their decision in Economy Fuse & Mfg. Co. v. Raymond

Concrete Pile Co., 111 F. 2d, 875, is not contrary to the

above Illinois cases nor is it contrary to their decision

in this case.

Novosk v. Reznick, 323 Ill. App. 544, 551 (1944), is an-

other case indistinguishable in principle from the case at

bar. In that case plaintiffs, as operators of defendants’

motor buses sued for the difference between what they

received from the defendants and the amount which the

defendants contracted in writing with the Works Pro-

gress Administration to pay operators. At the trial it

was stipulated that plaintiff, Novosk, worked for the de-

fendant, from June 22, 1936, to July 10, 1937, as a bus

10

driver engaged in carrying WPA workers to WPA proj-

ects. Novosk’s suit was not filed within five years after

July 10, 1937. After a review of the Illinois decisions

on the question the court held that Novosk’s action was

barred by section 15 (five year) of the limitations act

saying:

‘*We are therefore impelled to hold that as parol

testimony must be resorted to, to show the existence

of a contractual relationship between the plaintiffs

and the defendants, plaintiff Novosk’s action was

barred by the 5-year statute of limitations, not hav-

ing been commenced within five years from July 10,

1937.”’

Petitioners’ attempt to distinguish the above case by

stating (p. 10) that they ‘‘were not third party benefi-

ciaries to the written contract but were direct benefi-

ciaries in it.’’ No such distinction exists and even if it

did it would not affect the application of the statute of

limitations. It is settled under the law of Illinois that a

third party beneficiary cannot sue at all on an agreement

unless it is made for his direct benefit. Tiley v. City

of Chicago, 134 F. 2d, 682, certiorari denied 320 U. S.

759; Sachs v. Ohio Nat. Life Ins. Co., 148 F. 2d, 128;

Cherry v. Aetna Casualty & Surety Co., 372 Ill. 534, 25

N. E. 2d, 11.

In Orminski v. Hyland Electrical Supply Co., 326 Tl.

App. 392, 398 (1945), plaintiff brought an action for

overtime wages as a truck driver at the hourly rates

prescribed for such overtime in written contracts between

defendant and plaintiff’s labor union. Plaintiff alleged

that during the time involved he was a member of the

union and was employed as a truck driver by defendant.

With reference to the application of the five year statute

of limitations the Illinois Appellate Court said the fol-

lowing :

11

‘‘After the order of dismissal was entered plaintiff

made a motion for a ruling on that part of defend-

ant’s motion which sought to strike from the com-

plaint all claims for overtime not accruing within the

five years from the commencement of the action.

The court on hearing sustained defendant’s motion

and held upon the record then before it that plain-

tiff’s action was covered by the five year statute of

limitations governing oral contracts, because it would

be necessary to resort to parol evidence to show that

plaintiff was a member of his union and therefore

entitled to the benefits of the contract between de-

fendant and the union. This ruling is correct. Novosk

v. Reznick, 323 Ill. App. 544, 549-551.”’

Petitioners’ sole contention with respect to the above case

appears to be that ‘‘it does not appear from the record

that plaintiff there argued the legal effect of the motion

to dismiss the complaint was to admit his direct allega-

tion of fact.’’ (p. 11). Respondent submits that it may

be presumed that the Illinois Appellate Court knew the

legal effect of a motion to dismiss. The fallacy of peti-

tioners’ argument (pp. 10-12) with respect to the legal

effect of a motion to dismiss is obvious. That the instru-

ment relied upon by petitioners is not a ‘‘written instru-

ment’? within the Illinois limitations act can be determined

from the instrument itself, a copy of which was attached

to their complaint (R. 8). That instrument on its face

fails to show any contractual relationship between peti-

tioners and respondent. It fails to name any of petition-

ers or to show that any of them is in any way connected

with it or entitled to any benefits under it.

The cases of Richey v. Northwestern University, 323

Ill. App. 293, and G. S. Ellithorpe v. Holmes, 305 Ill. App.

——

12

625* are also directly contrary to petitioners’ argument

as to the legal effect on a motion to dismiss. In both of

those cases the question was presented on motion to dis-

miss as to whether the five or the ten year statute of

limitations was applicable. Both of those decisions fol-

lowed the state law established by Conductors’ Benefit

Ass’n. v. Loomis, 142 Til. 560, holding that the causes of

action were barred by the five year statute, contrary to

the contention of the plaintiffs that their actions were

based on written contracts.

It is also clear that a motion to dismiss is proper under

federal procedure whenever the time alleged in the state-

ment of claim shows that the alleged cause of action has

been barred by elapse of the statutory period. Wright v.

Bankers Service Corp., 39 Fed. Supp. 980; 1 Moore’s

Federal Practice, p. 597; 4 Moore’s Federal Practice,

p. 171.

On the basis of the foregoing, respondent submits that

both the District Court and the Circuit Court of Appeals

followed correctly, the controlling state law and _ that

this court will, therefore, refuse to grant a further re-

view. This court said in Huddleston v. Dwyer, 322 U.S.

232, 237:

‘“‘The decision of the highest court of a state on

matters of state law are in general conclusive upon

us, and ordinarily we accept and therefore do not

review, save in exceptional cases, the considered de-

termination of questions of state law by the inter-

mediate federal appellate courts, cf. Ruhlin v. New

York Life Ins. Co., swpra.”’

* The opinions in both of these cases are published only

in abstract form in the Official Reporter. Respondent

is therefore attaching copies of these opinions as an

appendix to this brief and is filing certified copies of

these opinions with this brief.

13

II.

Petitioners have suggested in their petition (p. 3) that

this court should grant a writ of certiorari because the

decision of the Seventh Cireuit Court of Appeals in this

case bars thousands of employes in various industries

from exercising their rights under the Illinois law to in-

stitute action against their employers. It is obvious of

course that that is not the effect of the opinion of the

Cireuit Court of Appeals. An enactment of the General

Assembly of Illinois limits to five years the time within

which such actions may be brought. Petitioners do not

and could not contend that the General Assembly was

without power to enact such a limitation nor that such a

limitation is unreasonable. Nothing in the opinion of the

Cireuit Court of Appeals prevents the institution and

prosecution of suits by employees against their employ-

ers within apt time.

It is respectfully submitted that the decision of the

Circuit Court of Appeals is correct. Petitioners have

been unable to cite any contrary or conflicting authority.

Respondent prays that the petition be denied.

Sipney C. Murray,

Marvin A. JERSILD,

Attorneys for Respondent.

December 24, 1946.

APPENDIX.

42819 ,

Dr. Earl L. Richey,

Appellant, Appeal From

v. . Superior Court

Northwestern University, Cook County,

a corporation,

Appellee. )

Mr. Justice Matchett Delivered the Opinion of the Court.

Dr. Richey averring wrongful discharge sued January

14, 1943. He filed a complaint of two counts, the first

composed of 16, the second 15 verified paragraphs. A

motion to dismiss was denied. Defendant then filed a

verified answer to each paragraph of both counts. March

1, 1943, plaintiff filed an additional count of 18 para-

graphs, verified. March 31, 1943, defendant made a mo-

tion to strike the entire complaint and each count of it to

dismiss plaintiff’s action, and asked for summary judg-

ment in its favor against the plaintiff. This motion was

made under Sections 45, 48 and 57 of the Civil Practice

Act. Under Rule II of the Supreme Court, the defendant

incorporated as a part of its motion its answer formerly

filed on February 15, 1943, to Counts 1 and 2. Sugges-

tions for and against were filed. Among other things it

was suggested the supposed causes of action alleged were

inconsistent with and repugnant to each other and did

not accrue within the time limited by law for the com-

mencement thereof (Chap. 83 Ill. Rev. Stat., § 15, par.

16, § 16, par. 17). It was pointed out that if the cause

16

of action accrued at all, it was either on April 13, 1934,

or not later than September 1, 1934, which, in either case,

would be more than five vears before the filing of the

suit. Defendant prayed the amended complaint be stricken,

the action dismissed and final summary judgment for

defendant entered. The motion was granted and judg-

ment so entered July 2, 1943.

Afterwards, on July 9, 1943, plaintiff moved for an

amended order to the effect that the final judgment of

July 2, 1943, was in no way based on the Statute of Lim-

itations for the reason that this defense could not be

validly and legally raised by motion but only by way of

plea or answer. This motion was denied.

The appeal seems to turn on the question of whether

the suit is barred by Section 16 of the Limitations Act.

The material facts pleaded are, in brief, that in August,

1926, Dr. Richey was employed as an instructor in de-

fendant’s college of dentistry at a salary of $3600 per

vear. The Dean of defendant’s college sent two telegrams

to him about the matter. These offered to employ him

for full time for one year at a salary of $3600 per vear,

with the expectation of an increase after the first vear if

all was satisfactory with defendant. Plaintiff accepted

October 1, 1926, entered the service of defendant and

served for a vear. July 16, 1927, plaintiff was notified in

writing he was to be promoted to the office of Assistant

Professor of Prosthetic Dentistry in the faculty, Later, at

a meeting of defendant’s Board of Trustees, August, 17,

1927, as appears from minutes made a part of the plead-

ing, this promotion was approved. In August, 1928, plain-

tiff was again promoted to be an Associate Professor in

the dental college of defendant by resolution, which is

set out in the pleadings. Plaintiff again accepted and en-

tered into the office or employment and continued to hold

-

17

it for a period of about six years, when, it is alleged,

he was wrongfully discharged. In the first part of the

pleading the date of this wrongful discharge is alleged to

have been April 13, 1934; in another part, as not later

than September 1, 1934. The suit was begun January 14,

1943.

If Section 15 (the five-year section) of Chapter 83,

Illinois Revised Statutes, is applicable, this cause of ac-

tion was barred when it was begun, unless waived or ex-

tended for some reason. If Section 16, (the ten-year

section) is applicable, then the suit is not barred. ;

Plaintiff first contends that the defense of the Statute

of Limitations cannot be raised on this record. He says

it cannot be raised by motion but only by way of plea or

answer. He says he had a legal right to make an affirm-

ative reply to this defense and that this could not be done

on a motion to dismiss. Plaintiff specifically raised this

point in the trial court by motion made after the entry

of judgment. The court denied the motion, we hold,

rightly.

Section 48 (f), par. 172 of the Civil Practice Act, names

as one of the causes for dismissal of an action that it

“did not accrue within the time limited by law for the

commencement of an action or suit thereon’’. Plaintiff

says the court erred in not permitting a replication to

this defense to be filed. We hold otherwise. Under para-

graph 3 of the same section plaintiff had the right to

show if he could that the suit was not barred. When

leave was given to file the third count the order granted

leave to defendant to answer the complaint, as amended,

and plaintiff made no objection then or since. The effect

of this was, we hold, under the sections of the Civil

Practice Act above named, to open up the whole matter of

pleading. The motion for leave related back to the entire

18

complaint, including the first, second and third counts,

The answers theretofore filed, therefore, did not waive

the Statute of Limitations. The result is, if Section 15

is applicable to the facts as alleged (in other words, if

the suit is on an unwritten contract) it is barred. If

Section 16, as to written contract, is applicable, then the

suit is not barred. We hold the contract cued on is un-

written, not written, within the meaning 07 the Statute

of Limitations. The action is therefore barred. Knight

vy. Railway Co., 141 Tl. 110, 115; Conductors Benefit Ass’n

v. Loomis, 142 Tll. 560, 571-2; Pond Creek Mill & Eleva-

tor Co. v. Clark, 270 Fed. 482, 485; Mowatt v. City of

Chicago, 292 Ill. 578, 581-3; 7. C. R. R. v. Miller, 32 Th.

App. 259, 267-8.

The leading cases in the classification of written as

distinguished from unwritten contracts and from the

standpoint of the Statute of Limitations are cited in the

briefs. Again, as often before, we have perused them.

We doubt much whether anything we might write on this

subject would add to the sum of legal knowledge. When

it comes to classification the first rule of logie is neces-

sary. A thing must either be or not be. A thing cannot

be a ‘‘writing’’ and ‘‘not a writing’’ at the same time for

classification purposes. This suit cannot be reasonably

said to he based upon a written contract. We have not

overlooked Williston on Contracts, Rev. Ed., Vol. 1, § 568,

nor the Restatement of the Law of Contracts, §§ 207, 208

and 209, cited by plaintiff. The motion made, as we un-

derstand the practice, searched the whole record and on

that record plaintiff could not recover. The judgment

is therefore affirmed.

Affirmed.

19

40511 '

G. S. Ellithorpe, A iF

Appellant, 4 ppeal From

- Cireuit Court

Cook County,

Vv.

Glenn E. Holmes,

Appellee. |

Mr. Justice Scanlan Delivered the Opinion of the Court.

Plaintiff sued in contract to recover for brokerage

commissions. Defendant filed a written motion to strike

the amended complaint and dismiss the cause upon the

ground, inter alia, that the alleged cause of action was

barred by the five-year statute of limitations. The trial

court sustained the motion and dismissed the suit. Plain-

tiff appeals.

The amended complaint alleges that prior to March 12,

1937, defendant employed plaintiff, a licensed real estate

broker, as exclusive real estate broker to negotiate for

the sale, sublease, transfer, or other disposition of the

interest of defendant in certain described real property

located in Chicago; ‘‘that thereupon and thereafter the

said defendant * * * confirmed in writing the said employ-

ment, in words and figures as follows:

‘*March 12th, 1927

“Mr. G. S. Ellithorpe,

‘137 Merrill Avenue,

“Park Ridge, Illinois

‘Dear Sir:

“This will confirm our verbal understanding that you

are to act as exclusive broker for my interests in the

property located at numbers 22 to 36 West Lake Street,

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this city, and I hereby authorize you to negotiate for the

sale, sub-lease, transfer or other disposition of same; it

being understood that all terms or conditions of any ne-

gotiations are to be subject to my agreement in writing.

‘*Yours very truly,

‘*(signed) Glenn E. Holmes.’’

The complaint further alleges that pursuant to the said

employment plaintiff negotiated for the disposition of de-

fendant’s interest in the property and that as a result of

his services as such broker a contract of sale was en-

tered into on November 26, 1927, between defendant and

certain transferees, etc., of said interest, and thereafter

on December 27, 1927, the transaction between the said

parties was consummated. The complaint then sets up

that the consideration for the transfer of the property

was 208 shares of stock of the Dearborn-Lake Building

Corporation, which was then and there of the market

value of $250,000; that ‘‘the usual reasonable and cus-

tomary brokerage commissions for the services performed

by plaintiff aforesaid, on and about the months of Novem-

ber and December, 1927, was 3% computed on the basis

of the value of the consideration of such sale, transfer

and assignment as aforesaid, of $250,000, or $7,500 com-

mission.”’

Plaintiff contends that ‘‘the writing sued upon is a

written contract and that the five-year statute of limita-

tions has no application,’’ and that the ten-year statute

of limitations applies. Defendant contends: ‘‘1. The

obligation of the defendant on which recovery is sought

is an implied promise to pay plaintiff the reasonable

value of his services, hence an oral contract within the

statute of limitations and barred by the lapse of five

years. 2. The letter recited in the amended complaint

is merely evidence of the employment of plaintiff by de-

_——

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fendant but does not constitute a written contract between

them within the meaning of the statute of limitations as

distinguished from a written memorandum under the

statute of frauds. The cause of action on which recovery

is sought is based on the employment plus performance

bv the defendant which, by operation of law, entitles

plaintiff to an action for commissions. The letter is of

evidentiary value should defendant deny the employment,

but the gravamen of the action is the implied obliga-

tion.”’

The original complaint was filed November 23, 1937.

Plaintiff’s cause of action as alleged in the amended com-

plaint arose November 26, 1927. It seems plain to us that

under the settled rule of law in this State plaintiff’s ac-

tion was upon an implied contract and therefore the five

year statute of limitations applies. The letter set forth

in the amended complaint confirms the employment of

plaintiff as broker but makes no mention of compensa-

tion. Indeed, the amended complaint does not allege any

promise by defendant, express or implied, to compensate

plaintiff for the latter’s services as real estate broker.

But where brokers are employed to sell a piece of real

estate there is an implied obligation to pay the customary

and reasonable compensation for the services performed.

An action upon an implied contract must be brought

within five years after the cause of action aecrued. (Mo-

watt v. City of Chicago, 292 Ill. 578). In that case the

court said (p. 582): ‘‘In this State it has been held that

if the action is brought upon a mere implied undertak-

ing the five year Statute of Limitations controls. (Knight

v. St. Louis, Iron Mountain and Southern Railway Co.,

141 Ill. 110; Bates v. Bates Machine Co., 230 id. 619).

This court has held that a written contract is one in which

all of its terms are in:writing; that a contract partly in

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writing and partly oral is in legal effect an oral contract.

If parol evidence must be introduced to sustain the action

the contract is not in writing under this statute. (Con-

ductors’ Benefit Ass’n. v. Loomis, 142 Ill. 560). The fol-

lowing authorities support same conclusions: 25 Cye.

1042; 1 Wood on Limitations, (4th ed.) sec. 57f, and cases

cited; Bishop on Contracts, sees. 197-203, incl.; 3 Page on

Law of Contracts, (2d ed.), see. 1500, and authorities

cited; Dodd v. Board of Education, 122 Cal. 106.’ (See,

also, Junker v. Rush, 136 Ill. 179, 184).

The letter in the amended complaint is undoubtedly evi-

dence of the transaction between the parties, but to es-

tablish his claim plaintiff would be obliged to introduce

oral testimony to prove the reasonable and customary

commission for services such as plaintiff performed. De-

fendant would then have the right to introduce oral tes-

timony to rebut that offered by plaintiff. As stated in

the Mowatt case (p. 582): ‘‘* * * a contract partly in

writing and partly oral is in legal effect an oral contract.

If parol evidence must be introduced to sustain the ac-

tion the contract is not in writing under this statute

[statute of limitations].”’

Plaintiff contends that the trial court committed revers-

ible error in denying him the right to amend his amended

complaint. It is conceded that the judgment of the trial

court was predicated upon the ground that the five-year

statute of limitations applied. Plaintiff had already filed

an amended complaint. He did not submit to the trial

court a second amended complaint and so far as the rec-

ord shows no showing was made that plaintiff could have

avoided the five-vear statute by alleging a different cause

of action arising out of the transaction in question, nor

does plaintiff attempt to show this court how a second

complaint would have aided his cause. He simply asserts

—

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that the action of the trial court wiped out his rights.

In view of the record before us, we certainly would not

be warranted in holding that the trial court committed

reversible error in denying plaintiff’s motion for leave

to file a second amended complaint.

The judgment of the Circuit Court of Cook County is

affirmed.

Judgment Affirmed.

Sullivan, P. J., and Friend, J., concur.