Day v. Luna Park Co. , 174 Ill. App. 477 ( 1912 )

Mr. Justice Brown

delivered the opinion of the court.

Examination of the record in this case has convinced us that whatever were our views of the law on the material questions involved, we could not aErm the decree appealed from. Even assuming, as contended by the complainant, first, that the rights of Sbarbaro under the “concession contracts” were never validly forfeited or terminated; secondly, that these rights were property interests which passed as integral matters to his assignee in bankruptcy, and which the “seizure” and attempted forfeiture had not transformed into mere claims for the breach of contracts; and, thirdly, that a Court of Equity had power, under this condition of things, to substitute a money decree on the theory of a tortious conversion, for the relief theoretically more logical and obvious, of merely setting aside the forfeiture and reinstating Sbarbaro’s assignee in the possession of the property and business involved in the concessions; and requiring an account for the time it was usurped by others—we should still be obliged to reverse that money decree on the ground that its amount was against the weight of all the competent, material and cogent evidence to be found in the record thereon. The ultimate decision we have reached on the case as a whole, however, renders immaterial the matter of the values which the court below placed on the various interests and parcels of property, which it considered were wrongfully withheld from the complainant.

We shall not stop, therefore, to discuss any of the details of the values attributed to the various chattels which made up a part of the sum decreed to be paid or to question the computation, except as to- the value of the bar “concession contract.” But we do think it necessary to say that we cannot find in the evidence taken together justification for the appraisement of $5,000 placed on that. In so saying we have fully in mind the testimony of the men familiar with amusement park management, who were introduced as experts and swore that for an unexpired term of three years the concession was worth certain large sums. The testimony, however, to this effect was on a wholly speculative basis, and a careful consideration of the facts and figures of what actually had to be expended by the concessionaire to keep the bar business and concession alive, shows to our satisfaction that no such estimate as was put upon them by three experts should be the basis of any judgment.

While it is true that a bad season m^y be succeeded by a good one and prosperity follow depression, it cannot be wholly ignored in this case that whatever the success of Sbarbaro’s business during the first year of the concession, there was evidently a severe “slump” in the second, and that the concluding portion of the season seems to show a peculiarly bad condition. We shall not attempt to analyze in this opinion, as we have done in our study of the record, the facts and figures on which our conclusion is based. Such an analysis is needless here, as we are of the opinion, as hereinafter set forth, that the assumptions of law above stated, on which alone could be predicated any right of the complainant to recover in this cause, cannot be properly made. We will stop, therefore, on this matter of the value of the “bar concession” only to note that the offer of Mr. Merle to purchase the concession and the personal property involved in it for $3,500, and furnish a man to run the business, might seem to indicate, as nearly as any of the evidence offered by the complainant, that the concession had a considerable value. It must be remembered, however, that the witness was one of the creditors of the bankrupt estate whose return from the investment would include the refund to him of that proportion of it which his claim bore to all the liabilities of Sbarbaro.

But returning to the propositions of law maintained by the complainant and adopted by the court in framing the decree, we must express our disagreement with them.

There is, in our opinion, no evidence of a conspiracy in this case against Sbarbaro or his interests. The evidence seems to us to show an extremely stringent and drastic contract, into which Sbarbaro voluntarily and too sanguinely entered, a declining business, fears both on his part and on that of 0 ’Leary that he would be pressed by other creditors to the wall, insufficient capital or credit on Sbarbaro’s part to stand any continued depression in his business, and a willingness, perhaps even an eagerness on the part of O’Leary, to bring the relations between them to an end, the opportunity given O’Leary to do so by a plain violation by Sbarbaro of the covenants and conditions of the contract, the immediate acceptance of the opportunity by 0 ’Leary, the rigorous but valid enforcement of forfeiture allowed by the terms of the contract, and the immediate and complete abandonment of any personal attempt by Sbarbaro to fulfill the obligations of said contract or to redeem from the forfeiture, and his voluntary rush into a bankruptcy already contemplated.

All this furnishes to our mind no reason for holding there was a “conspiracy,” nor that the previous indulgence shown Sbarbaro by the defendants can be urged as a reason for holding that under the circumstances of the repudiated check, O’Leary for the company had not the right to determine for himself that the time had come for enforcing the letter of the contracts. If words mean anything, the contracts in question were not leases but licenses. They were severe and harsh in their terms as against the concessionaire undoubtedly, but they were voluntarily entered into and at the beginning seemingly coveted. We can not make contracts for people, nor relieve them from their own imprudence in taking undue risks. We think the bar concession, with which alone, for the purposes of this discussion we are concerned, was validly forfeited, leaving nothing to pass to the assignee in bankruptcy of Sbarbaro but his interest in his personal property located in the park, for which the defendants concede their obligation to account in law. If the right to have this forfeiture declared ineffectual does not exist, there is no equitable jurisdiction to be invoked in favor of complainant.

We might perhaps content ourselves, therefore, with stating the conclusion above given as to the validity of the forfeiture. It may not be amiss, however, to define our position also on the other basic propositions necessary to sustain a money decree in this case.

Even if the “forfeiture” had been invalid and the seizure of the premises unjustifiable, no property rights in the concessions would have passed to the assignee in bankruptcy, in our opinion. These concessions as before noted were contracts not conveyances, licenses not leases. They cannot be turned into real property or into chattels, real or personal, by the operation of the bankruptcy laws, or in order to furnish ground for equitable relief, nor because a part of the contract was the building by one party on the land of the other.

The Luna Park Company had a contract with Sbarbaro. If the forfeiture was void and invalid, then the Luna Park Company broke that contract on August 24, 1908, by unjustifiably revoking the privileges and permissions granted to Sbarbaro. For this Sbarbaro had his personal actions for damages and when he went into bankruptcy on August 27th the beneficial right to that action and damages passed to the trustee. Such damages for breach of contract are properly to be ascertained by a jury. No equitable right to the “concessions” vested in the trustee. The authorities cited on the assignability of leases or certain classes of contracts by operation of láw do not seem to us to be of force here. The concession contract was a personal one. It distinctly and expressly precluded by its terms assignability or transfer except by consent of the company. The trustee in bankruptcy could not assure his own or a vendee’s satisfactory personality to the company. Whatever rights there were passing to the trustee either by way of an accounting for money, for goods used, or the seizure and constructive or actual conversion of chattels were legal, not equitable, rights, easily to be adjusted at law.

We think the whole theory of the bill and decree fallacious.

The decree is reversed and the cause remanded to the Superior Court, with directions to dismiss the bill for want of equity.

Reversed with directions.