Consolidated Coal Co. v. Peers , 97 Ill. App. 188 ( 1901 )

Mr. Justice Bigelow

delivered the opinion of the court.

The errors assigned are, that the court erred in rendering judgment for the plaintiff on the third count, without disposing of the issue made on the first count of the declaration.

That the court erred in overruling appellant’s demurrer to the third count of plaintiff’s declaration.

And that the court erred in rendering judgment against the defendant for $3,600.

Appellee has assigned no cross-errors and therefore the declaration must be regarded in this court, as consisting of only the first and third counts.

Anything that we might say in regard to the second count or of the effect of the ruling of the court in connection with it, would be uncalled for, and mere obiter dicta, as the count and all that pertains to it, is to this court, as though it never had existed.

Counsel for appellant insists that the omission to dispose of the issue raised on the first count is such error as should reverse the judgment of the trial court. It was technical error not to dispose of the issue, but inasmuch as that issue had nothing to do with the third count, the pertinent allegations of which appellant admits by his demurrer, appellant was in nowise prejudiced by the omission, and it is not therefore such prejudicial error as calls for a reversal of the judgment. In this view counsel for appellant agrees, as near the- close of his printed argument he says :

“ The litigation has been a long one, and if appellee has any just ground on the merits of the case for a recovery there ought to be a recovery, and if he has no such ground the litigation ought to be terminated.”

We think that on the merits of the case appellee has just ground to recover, and agree with the counsel that the litigation ought to be terminated.

As to the error which brings in question the judgment of the court in overruling appellant’s demurrer to the third count of plaintiff’s declaration, it is insisted by counsel for appellant that much of the count is mere inducement, and that the essential ground of the action is the claimed consolidation of the Abbey Company with appellant and that if the pleading fails to show that there was such a consolidation, then the demurrer was wrongfully overruled. Whether matter alleged in a pleading is inducement or surplusage, must be determined by a sound construction of the entire pleading.

“ Inducement ” has-been defined as the statement of matter which is introductory to the principal subject of the declaration or plea, and which is necessary to explain or ■elucidate it. Such matter as is not introductory to, or necessary to elucidate the substance or gist of the declaration, plea, etc., or is collaterally applicable to it, is surplusage. Bouvier’s Law Dictionary (Bawle’s Ed.). And the same authority defines “surplusage” to be matter wholly foreign and impertinent to the cause. Had the pleader intended to have only stated the statutory liability of appellant to pay the rent reserved in the lease, all that would have been needful was to allege the consolidation of the Abbey Company with appellant, or facts constituting a consolidation; that the Abbey Company was owing the debt sued for, and that while so indebted it merged its corporate life with appellant.

The allegations that the Abbey Company made a deed to appellant, containing certain agreements, which deed was accepted by appellant, and that appellant went into possession of the leasehold estate, were all immaterial matters, if appellee was grounding his action on the claimed consolidation only. In no sense can they be taken to be in necessary explanation of the main groundwork of the count, if construed as a count for consolidation only. Ought these allegations to be considered as mere surplusage % The allegation that the deed contained an agreement “ subject to the performance of the agreements therein mentioned to be performed by the lessee,” shows that the pleader relied ' upon the privity of contract that the law, in a proper case, may say exists; and the fact that the pleader says “ that the defendant thereupon took possession of the property by said deed conveyed to it, and from thence until the commencement of this suit has had the use, control and enjoyment thereof,” etc., shows that the pleader was relying for a recovery on the grounds of privity of estate existing between appellee and appellant as the assignee of the lessee, the Abbey Mining Company. To denominate that kind of pertinent allegations as surplusage, when they are attacked in no way except by a general demurrer, merely because there is ip, the same count an attempt to hold appellant liable on the theory of a consolidation, would be to construe away essential allegations without authority of law. We are of the opinion that the count should be regarded as presenting a double, or possibly a treble ground of liability for a single demand. In other words, the count must be regarded as containing .the fault known in pleading as duplicity, and such a fault can be reached only by special demurrer.

The only question left is whether the count states some cause of action; for if it does, the court did not err in overruling the demurrer and in assessing the damages.

In passing on the present record, the decision in the 166th Ill. can not be controlling, because appellant’s pleas in the record as it then stood showed an assignment of the leasehold estate, by appellant to one Lasurs, on the 28th day of November, 1887, and that he took possession of the leased premises, thereby terminating the privity of estate theretofore existing between appellee and appellant; nor is there in the present record any question of res adjudicata. By the allegations already quoted appellant is admitted to have received an assignment of the leasehold estate from the Abbey Company, and the demurrer admits that appellant was in possession of the estate from September 20, 1891, to September 20, 1894. An assignee of a lessee is bound, by reason of the privity of estate, to a performance of all express covenants which run with the land. Consolidated Coal Company v. Peers, 166 Ill. 361; Sexton v. Chicago Storage Co., 129 Ill. 318; Webster v. Nichols, 104 Ill. 160.

This view of the case makes it unnecessary to determine whether there was a consolidation of the Abbey Company with appellant or not; and it likewise makes it unnecessary to determine whether the expression “ performance of the agreements therein mentioned to be performed by the lessee,” became a binding express covenant on appellant, when it accepted the deed from the Abbey Company. There was no error in assessing plaintiff’s damages and rendering judgment therefor, as was done, since the demurrer admitted the royalty alleged in the count to be due and unpaid.

Finding .no error in the record requiring a reversal of the judgment it is affirmed.