# Opposition Brief — Kordewick v. Indiana Harbor Belt Railroad

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0902%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 329 U.S. 806

## Text

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,

20

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-

_——

21

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

22

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

—

23

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0902%3A2. Public record. Not legal advice.