{ "id": 5786421, "name": "Louis P. Lellos, Plaintiff-Appellant, v. Sophia Lellos, Defendant-Appellee", "name_abbreviation": "Lellos v. Lellos", "decision_date": "1960-04-05", "docket_number": "Gen. No. 47,926", "first_page": "201", "last_page": "207", "citations": [ { "type": "official", "cite": "25 Ill. App. 2d 201" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "307 Ill. 243", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5092634 ], "opinion_index": 0, "case_paths": [ "/ill/307/0243-01" ] }, { "cite": "4 Ill.App.2d 249", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5134880 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0249-01" ] }, { "cite": "263 Ill. App. 487", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3255752 ], "opinion_index": 0, "case_paths": [ "/ill-app/263/0487-01" ] }, { "cite": "3 Ill.2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2696840 ], "opinion_index": 0, "case_paths": [ "/ill-2d/3/0291-01" ] }, { "cite": "234 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5641595 ], "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill/234/0215-01" ] }, { "cite": "16 Ill.2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760716 ], "weight": 2, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0268-01" ] }, { "cite": "310 Ill. App. 241", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3378908 ], "opinion_index": 0, "case_paths": [ "/ill-app/310/0241-01" ] }, { "cite": "23 Ill.App.2d 285", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5204436 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/23/0285-01" ] }, { "cite": "75 Ill. 446", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2701308 ], "opinion_index": 0, "case_paths": [ "/ill/75/0446-01" ] }, { "cite": "196 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 841337 ], "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill/196/0244-01" ] }, { "cite": "181 Ill. 529", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5550000 ], "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill/181/0529-01" ] }, { "cite": "106 Ill. 36", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2783455 ], "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill/106/0036-01" ] }, { "cite": "89 Ill. 349", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 826261 ], "opinion_index": 0, "case_paths": [ "/ill/89/0349-01" ] } ], "analysis": { "cardinality": 521, "char_count": 9218, "ocr_confidence": 0.534, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17034410114257625 }, "sha256": "f6cc7e1868ffac076b346d0e882e334136e6142813892f761996636e7c3a9e6c", "simhash": "1:79466c36828549ff", "word_count": 1520 }, "last_updated": "2023-07-14T20:54:20.411068+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MURPHY, P. J. and BURMAN, J., concur." ], "parties": [ "Louis P. Lellos, Plaintiff-Appellant, v. Sophia Lellos, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KILEY\ndelivered the opinion of the court.\nThis is a suit by a husband against his wife seeking to establish a constructive trust and to compel a conveyance of real estate, and for an accounting and injunction. Defendant\u2019s motion to strike was sustained and the suit dismissed. Plaintiff has appealed.\nPlaintiff resides in Florida and defendant in Illinois. They were married on April 9, 1950, when he was in the real estate business and she was the owner of nine parcels of property in Chicago and Oak Park, Illinois.\nIt is with respect to these properties and a parcel now held in land trust that plaintiff made his claims in the original complaint. After plaintiff\u2019s original complaint was stricken, he was denied leave to file an amended complaint. He \u201cfiled\u201d the amended complaint, according to the record, nevertheless. Assuming, but not deciding, that the chancellor should have permitted plaintiff to file his amended complaint, we shall consider both pleadings to see whether a cause of action has been alleged, treating the unauthorized filing as a proffer of the amended complaint.\nThe complaint alleges an oral contract with plaintiff\u2019s wife, untutored in real estate affairs, under which he was to manage and improve her properties which were in a depressed, distressed and illegal condition; that he rescued the properties, rehabilitated them, improved them, refinanced them, made them productive, and sold some of them; and that under the contract he was to receive as compensation, 50% of the properties and their income.\nPlaintiff charges defendant wrongfully a) converted money due him, b) misappropriated his funds, c) purchased property with his funds, and d) conveyed his property. He seeks, among other relief, an accounting of the funds allegedly due him, the establishment of the trust of properties purchased with his alleged funds, and conveyance of the properties allegedly owned by him.\nDefendant in the motion to dismiss relied upon section 8 of the Rights of Married Women Act, Ill. Rev. Stat., ch. 68, sec. 8 (1959): \u201cNeither husband or wife shall be entitled to recover any compensation for any labor performed or services rendered for the other, whether in the management of property or otherwise.\u201d Plaintiff argues that that section does not apply and that his suit is based on a contract between him and his wife, authorized under section 6 of the same Act: \u201cContracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried.\u201d\nThere has been no case cited, nor has our research discovered any case since the adoption of the Husband and Wife Act in 1874, Ill. Rev. Stat., ch. 68 (Hurd 1877), deciding the precise point before us. In Hamilton v. Hamilton, 89 Ill. 349, cited by plaintiff, the court merely found nothing in the then section 6 which limited a wife\u2019s capacity to sue her husband in assumpsit on a note. The only limitation then in section 6 was that she could not enter a partnership unless her husband \u201chas abandoned or deserted her, or is idiotic or insane, or is confined in the penitentiary.\u201d Ill. Rev. Stat., ch. 68, sec. 6 (Hurd 1877).\nThere are other cases cited by defendant which construe section 8 of the Husband & Wife Act of 1874, but they involve questions different from the one presented here. Thomas v. Mueller, 106 Ill. 36, 41; Reuter v. Stuckart, 181 Ill. 529, 543; Alsdurf v. Williams, 196 Ill. 244, 249. These cases do state that section 8 precluded one spouse from receiving compensation for labor or services rendered to the other, and the Eeuter and Alsdurf cases involved a husband\u2019s labor on the wife\u2019s separate estate.\nPlaintiff relies on Patten v. Patten, 75 Ill. 446. There the husband claimed, in a suit for accounting, that he was entitled to the \u201cincome and proceeds\u201d collected by him from her separate estate because they were living as husband and wife, and the presumption was that she consented, irrevocably, to the appropriation. After deciding against the husband\u2019s claim, the court went on to say he acted as her agent, and \u201clike other agents, is entitled, in the absence of a special contract, to reasonable compensation for services ... on behalf of snch separate estate.\u201d That statement, however, was made in relation to the \u201cMarried Women Act of 1861.\u201d Ill. Rev. Stat., ch. 69a (Hurd 1869).\nIn that Act the only provision with respect to a right of compensation was in section 13, an amendment made in 1869: \u201cProvided, this act shall not be construed to give the wife any right to compensation for any labor performed for her minor children or husband.\u201d It was not until the Act in 1874 that the legislature added the present section 8 prohibiting either spouse from receiving compensation from the other \u201cfor any labor or services rendered . . . whether in the management of property or otherwise.\u201d\nDespite all the social and economic changes in Illinois since 1874, the legislature has seen no reason, apparently, for changing section 8. We must assume that the legislature, when it enacted section 8, knew of section 6 and intended to exclude from its terms, contracts made by a wife with her husband which provides compensation for his \u201clabor performed or services rendered . . . whether in the management of property or otherwise.\u201d We conclude, therefore, that plaintiff\u2019s pleadings do not state a cause of action with respect to plaintiff\u2019s one-half interest \u201cin consideration of\u201d his oral understanding in the \u201cmanagement, conduct, operation and improvement\u201d of defendant\u2019s properties, whether as agent or otherwise. The reason is that the contract relied on falls within the terms of section 8.\nThe amended complaint is based on an oral contract of partnership.\nDefendant\u2019s motion admits the well pleaded allegations. Bush v. Babb, 23 Ill.App.2d 285. And, since this is before decree, plaintiff\u2019s pleadings are construed strongly against him. Consumers Petroleum Co. v. Flagler, 310 Ill. App. 241. Applying these rules of pleading, we are of the opinion that the chancellor conld properly decide that there is nothing to show defendant contributed her property to a joint enterprise; or that she admitted a partnership or permitted plaintiff to hold her out as a partner; nor that defendant intended a partnership; or that she joined with him \u201cto carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interests in the profits.\u201d Peck v. Peck, 16 Ill.2d 268, 280. The allegation of the one-half interest as consideration is consistent with a mere rendering of services. Clemens v. Crane, 234 Ill. 215, 238. It is true that the contract of partnership need not be written and may be inferred from the circumstances, Rizzo v. Rizzo, 3 Ill.2d 291, but the allegations must present a basis from which the intention of partnership may be inferred. Patek v. Patek, 263 Ill. App. 487; Bramson v. Bramson, 4 Ill.App.2d 249. No such basis is laid in the complaints. There is no statement of a cause of action based on partnership.\nThe original complaint alleges that in March, 1957, with their joint funds, plaintiff and defendant purchased from American National Bank the beneficial interest in property at Archer and California Avenues in Chicago, and that \u201cfor convenience and other business reasons and because plaintiff reposed complete trust ... in defendant\u201d the purchase was made, in defendant\u2019s name alone. All notes and income, state the pleadings, with respect to and from these properties were by agreement to be collected by defendant and deposited in a separate joint account with a monthly disbursement to plaintiff of 50% of the net amount collected. Plaintiff alleges defendant has broken faith with him in failing to keep this agreement and has continued her refusal to meet his demand to account to him.\nDefendant argues that these allegations, taken as true, give rise to a presumption of a gift and relies on Peck v. Peck, 16 Ill.2d 268. In that case there were no \u201cspecial equities\u201d which overcame the presumption of a gift to the wife and the presumption prevailed. Here there is the allegation of the agreement to open the separate joint account and remit 50% to plaintiff of the net income from the beneficial interest. We think the presumption of a gift is negatived by these allegations. Crawford v. Hurst, 307 Ill. 243. The original complaint states a cause of action with respect to the property allegedly purchased with joint funds and held in a land trust.\nWe need not consider whether the alleged oral contract violated the statute of frauds nor whether the trial court erred in determining \u201ccomplex and intricate issues of accounting.\u201d\nFor the reasons given the decree dismissing plaintiff\u2019s suit is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nMURPHY, P. J. and BURMAN, J., concur.", "type": "majority", "author": "JUSTICE KILEY" } ], "attorneys": [ "John D. Yosnos, of Chicago (George A. Bosomburg, of counsel) for plaintiff-appellant.", "Joseph Z. Willner, of Chicago, for defendant-appellee." ], "corrections": "", "head_matter": "Louis P. Lellos, Plaintiff-Appellant, v. Sophia Lellos, Defendant-Appellee.\nGen. No. 47,926.\nFirst District, Second Division.\nApril 5, 1960.\nJohn D. Yosnos, of Chicago (George A. Bosomburg, of counsel) for plaintiff-appellant.\nJoseph Z. Willner, of Chicago, for defendant-appellee." }, "file_name": "0201-01", "first_page_order": 213, "last_page_order": 219 }