Kelly v. Galbraith

Mr. Presiding Justice Sears delivered the opinion of the court. It is in effect contended by counsel for appellants that the findings of fact of the decree are not sustained by the evidence. After a careful examination of all the evidence we are of opinion that it does amply sustain the decree. The master in chancery and the chancell* have found that the description, “ the first store and basement north of the main -entrance on Franklin street,” was contained in the lease at the time it was executed. It is beyond dispute that the first store and basement north of the main entrance on Franklin street is not No. 129 Franklin street, and is No. 123 Franklin street. If the parties to the lease contemplated a demising of the first store and basement north of the main entrance in Franklin street, then it follows that the description No. 129 Franklin street in the lease is a mistake. That they did contemplate precisely these premises in making the lease is established beyond reasonable question. The evidence discloses that during the reconstruction of the building appellants1 representative examined these premises, designated work to be done and changes to be made upon that particular store, and that after the stores were completed appellants moved into the store No. 123 Franklin street, the first store and basement north of the main entrance, and occupied it without protest or complaint until this controversy arose. After having paid the rent stipulated by the terms of the lease for more than two years, they then, for the first time, raised a question as to the identity of the premises occupied by them with the premises which they had supposed they were obtaining by the lease. The allegations of the bill of complaint are amply established. The description, No. 129 Franklin street, was a mistake of the scrivener, and the evidence establishing this fact is clear, convincing and satisfactory. Questions raised as to whether the mistake was a mutual mistake of the parties are answered by the foregoing findings of fact. If each party intended that No. 123 Franklin street, which is the store located next north of the main entrance, was being demised, and the scrivener wrote into the lease as a description thereof the words No. 129 Franklin street, it was clearly a mistake mutual and common to both parties. If it were true that, in spite of this mistake in the lease, the appellants might recover rent upon it in an action at law, and hence that, having an adequate remedy at law, there was no ground for the intervention of equity, yet this ground of objection not having been raised in the court below, can not be raised here for the first time. When the subject is a proper one for equity jurisdiction, then, although there be a remedy at law which is adequate, this objection is waived if not made in the trial court. The matter of reforming a mistake of this nature is a matter proper for equitable cognizance, and therefore the objection that there was an adequate remedy at law comes now too late. There is another question raised by counsel for appellants, which is not without difficulty. The decree ordered payment of rent, not only such as had accrued before the filing of the bill of complaint, but also rent which had accrued during the pendency of the suit. No supplemental bill was filed. It is contended by counsel for appellants that this new ground of recovery, which had arisen after the filing of the original bill, could not be made the basis of distinct, affirmative relief without a supplemental bill. On the other hand, the counsel for appellees contend that equity jurisdiction having once attached, the court, having the subject-matter before it, could proceed to do complete justice between the parties, even to the including of matters arising subsequent to the filing of the bill, and without necessity of supplemental bill. There is apparent authority to support each contention. The general rule is doubtless that new matter, arising after the commencement of the suit, must be brought before the court by supplemental bill if such new matter is to be made the basis of distinct relief. In the early decisions this rule was adhered to with great strictness. In later practice it was relaxed, as applied to accountings, so as to permit accountings to cover periods pendente lite and down to the time of the decree. Barfield v. Kelly, 4 Russ. 355. This relaxation of the rule in modern practice has been applied also to suits for foreclosure of mortgages. Brown v. Miner, 21 Ill. App. 60; affirmed in 128 Ill. 148; Rhodes v. The M. S. & L. Co., 63 Ill. App. 77; Lowenstein v. Rapp, 67 Ill. App. 678. The question is presented as to whether the rule has been so far relaxed or abandoned that in this case the court might decree a recovery of rent which was not due when the bill was filed, but became due subsequently, and this, upon the allegations of the original bill of complaint, without a supplemental bill. Bo accounting is prayed for by the bill or ordered by the decree. The bill simply prays for a money judgment. The original bill prayed for a decree for all rent which might be due at the time of decree, but it did not, as it could not, allege a condition of facts which would make such rent recoverable. On thefiling of the bill it was not known, and could not be, whether rent would ever become due for the months which were in futuro. A leasing to another, destruction of the building, or other contingencies, might prevent any ground of recovery from ever accruing. If the rule as to pleading new matter, arising after bill filed, has any force whatever in our present practice, it would seem that these matters could not have been properly made part of the original bill by a sort of anticipatory pleading, but should have been presented by a supplemental bill. The decree finds rent due for the months after the bill of complaint was filed, and gives judgment therefor. There is no allegation contained in the bill that such amounts are due, and the decree is therefore without any allegation to support it in this behalf. While it is true that in suits in equity the right to decree is not limited to the facts as they existed at the commencement of the suit, and the relief administered may be such as the nature of the case and the facts, as they exist at the close of the litigation, demand, yet it is the established rule of chancery practice that such of the facts as have arisen after the bill is filed must, if made the basis of relief, be presented to the court by supplemental bill. Burke v. Smith, 15 Ill. 158; Mix v. Beach, 46 Ill. 311; Fahs v. Roberts, 54 Ill. 192; Miller v. Cook, 135 Ill. 190; Hughes v. Carne, Idem, 519; McDonald v. Asay, 139 Ill. 123; Fisher v. Holdem, 84 Mich. 494; Candler v. Pettitt, 1 Paige, 168; Stafford v. Howlett, Idem, 200; Wray v. Hutchinson, 2 Myl. & K. 235. If the suit for this rent had been brought at law, where it perhaps should have been brought (Bulkley v. Devine, 127 Ill. 406), and must have been if insisted upon below, no rent could have been recovered except such as had accrued before suit brought. Having selected a court of equity and succeeded in maintaining the suit there, appellees should be held to comply with the rules of chancery practice. The fact that appellants participated in the hearing before the master is of no consequence, for the difficulty is that decree for subsequent rent is based upon facts not alleged. The-writer is of opinion that the decree should, to this extent, be reversed, and otherwise affirmed. The majority of the court being of opinion that the decree should be altogether approved, it is affirmed.