Burlock v. Cook , 20 Ill. App. 154 ( 1886 )

McAllister, J.

The counsel for appellants insists that the chancellor erred in denying the right of complainants to recover hack all the overpayments of rent under the case in question, and that cases of the class of Brisbane v. Dacres, 5 Taunt. 143, Benson v. Monroe, 7 Cush. 125 and Reagan v. Baldwin, 126 Mass. 485, have no application, because in none of them was there any element of fraud.

The rule is elementary that in chancery every fact essential to the plaintiff’s title to maintain the bill, cmd obtain the relief., must be stated in the bill, otherwise the defect will be fatal. Story’s Eq. Pl., § 257; Skinner v. Bailey, 7 Conn. 499 ; Helm v. Cantrell, 59 Ill. 524.

Fraud is a fact and must be alleged in the bill in order to be a basis for relief. Brainard v. Bailey, 27 Conn. 617; Bailey v. Ryder, 10 N. Y. 363.

There is no allegation of fraud contained in the bill. A representation may be untrue or false, without being fraudulent.

The bill shows upon its face that all of the overpayments which the chancellor refused to allow the plaintiffs, were made after they had acquired a knowledge of all the facts affecting their rights in the premises. There is no allegation that such payments were superinduced by any fraud or deceit on the part of the defendants, or either of them, or by any duress, moral or otherwise. But plaintiffs simply allege that they paid them under protest. If fraud or duress was to be relied upon as a basis for that species of relief, it should have been alleged, so that defendants might be apprised by the bill what the suggestions and allegations were against which they were to prepare their defense.

We are of opinion also that there was no evidence tending to show that the overpayments made after September 1, 1884, were any of them superinduced by fraud or deceit on the part of defendants. The plaintiffs were then aware of all the facts affecting their rights, and defendants by their acts or representations, did nothing to obtain said payments or either of them, after the plaintiffs ha<| so acquired knowledge as to facts respecting defendants’ lease from the owner of the building. We are of opinion, also, that if the bill had contained any allegations as to said overpayments having been obtained by duress or legal compulsion, there is nothing in the evidence sufficient to sustain it. We think, as the case stood, the decree below was proper and should be affirmed.

Affirmed.