{
  "id": 3081009,
  "name": "NICK HAREAS, Plaintiff-Appellee, v. BILL G. KYRIAKOPOULOS et al., Defendants-Appellants",
  "name_abbreviation": "Hareas v. Kyriakopoulos",
  "decision_date": "1981-08-14",
  "docket_number": "No. 80-2424",
  "first_page": "393",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "177 N.E.2d 647",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1972,
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    {
      "cite": "32 Ill. App. 2d 267",
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      "year": 1972,
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  "last_updated": "2023-07-14T15:21:39.102418+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "NICK HAREAS, Plaintiff-Appellee, v. BILL G. KYRIAKOPOULOS et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nPlaintiff (lessor) brought an action for forcible entry and detainer of commercial property pursuant to \u201cAn Act in regard to forcible entry and detainer\u201d (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) against defendants (lessees) for nonpayment of rent. Following a bench trial the court entered judgment for possession in favor of the plaintiff. The execution was stayed pending defendants\u2019 appeal of the trial court\u2019s order.\nThe issues presented for review are: (1) whether the trial court erred in finding that plaintiff was entitled to possession; and (2) whether the alleged equitable defense asserted by defendants was applicable. The following facts are undisputed.\nDefendants have owned and operated a restaurant business located at 48 North Wells Street, Chicago, since April 26, 1968, which they have occupied pursuant to a written lease. The lease waives notice and will expire December 31,1982. Defendants testified that over the last 21* years they have made approximately $17,000 in improvements to the property.\nPlaintiff purchased the building in 1978. At trial, he testified that he did not receive the August rent check on August 1,1980; that when he had not received it by August 7, he instructed his lawyer to file an action seeking possession of the premises. A complaint was filed on August 7, 1980. No answer nor counterclaim of defendants is included in the record.\nPlaintiff further testified that on August 12 he received a check in the mail from the defendants but that the check was dated August 30, 1980. Plaintiff identified an envelope postmarked August 12 as that in which the check arrived.\nTom Kyriakopoulos, called by defendants, identified the check as the one he sent but denied that the envelope bearing the August 12 postmark was the one in which the check was sent. He claimed the writing on the envelope was not his. He further testified that he made out a check for the August rent on July 30,1980, in the amount of $1000 inadvertently dating the check 8/30/80, rather than 7/30/80. He testified that he mailed the check on July 30,1980, properly addressed and stamped to the plaintiff at plaintiff\u2019s address, 80 East Randolph Street, Chicago. Kyriakopoulos testified that he discovered the error four or five days later but did not mail plaintiff another check.\nKyriakopoulos produced his checkbook from his restaurant. Upon inspection of the check register the court noted for the record that the check in question, No. 587, was preceded by No. 586, a voided check also made out to plaintiff, and check No. 585, which bore the date July 28.\nThe court concluded that the check register belied that Kyriakopoulos made a mistake in postdating the check but rather did so intentionally. The check register was never entered into evidence and thus is not part of the record.\nThe court then found for plaintiff after considering all of the testimony and evidence presented.\nOpinion\nBoth defendants and plaintiff agree that intent is not an element mentioned in the forcible entry and detainer act and therefore need not be proved to establish such an action. Defendants assert, however, that since the court considered intent when ruling it should also have \u201cimplied\u201d that defendants\u2019 payment was not intentionally late but was the result of a mistake. Plaintiff counters that if intent is an unnecessary element to be proved, mistake is an irrelevant defense. Further, that even if relevant the court found that the postdating of the check in question was not a mistake, but an intentional act.\nThe purpose of the forcible entry and detainer act is to provide a \u201csummary statutory proceeding to adjudicate rights to possession * 6 \u00b0 unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.\u201d (Bleck v. Cosgrove (1961), 32 Ill. App. 2d 267, 177 N.E.2d 647.) Furthermore, in those cases where the right to possession is asserted solely by reason of nonpayment of rent, whether rent is due and owing is the crucial and decisive issue for determination. Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208.\nIn the instant case plaintiff asserted his right to possession by reason of defendants\u2019 failure to pay the rent due August 1 in accordance with the terms of the lease. Although the evidence was contradicted as to when the August check was received, in that Tom Kyriakopoulos denied that the envelope postmarked August 12 received by plaintiff bore his handwriting, there was no dispute that the check received by plaintiff was postdated August 30, 1980. Therefore, the check was not payable until that date. (Ill. Rev. Stat. 1979, eh. 26, par. 3 \u2014 114(2).) Clearly, the receipt of a check which is not payable until August 30, 1980, could not be considered timely payment of a rental due August 1,1980. Therefore, the \u201ccrucial decisive issue\u201d \u2014 whether rent is due and owing \u2014 can in the instant case be only answered in the affirmative. The question of intent is beyond the scope of inquiry under the facts of this case and therefore need not be considered. Accordingly, plaintiff\u2019s right to possession was established.\nHowever, defendants assert as an equitable defense that it would be a gross injustice to force them to cease operation of their business \u201cdue to no fault on their part\u201d considering the 12 years they have been in operation and the substantial material improvements at great financial cost they have made to the leased premises.\nA defendant may under a general denial of the allegation of the complaint give into evidence any matter in defense of an action. However, no matter not germane to the purpose of the proceeding shall be introduced by way of joinder, counterclaim or otherwise. (Ill. Rev. Stat. 1979, ch. 57, par. 5.) Thus, equitable defenses germane to the purpose of the proceeding may be raised. (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208; Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833.) The Illinois Supreme Court has stated that \u201c \u2018[g]ermane\u2019 has been judicially defined as meaning \u2018closely allied,\u2019 and is further defined [citation] as meaning: \u2018closely related; closely connected; relevant; pertinent; appropriate.\u2019 \u201d 46 Ill. 2d 249, 256, 263 N.E.2d 833, 838.\nIn the instant case whether rent was due and owing is the crucial and decisive issue. The length of time defendants have operated their business is not germane to a resolution of the issue. The funds defendants expended in improving the leased premises might be germane if the rental payment due and owing plaintiff was to be satisfied by such expenditure. However, defendants did not assert this allegation by way of answer, counterclaim or in any other manner. Therefore, the mere expenditure of these funds in and of itself is not \u201cclosely allied,\u201d \u201crelevant\u201d or \u201cpertinent\u201d to the issue of whether the August rental was due and owing plaintiff. Accordingly, such expenditure was not a germane equitable defense to plaintiff\u2019s action. See Joppa High School District No. 21 v. Jones (1976), 35 Ill. App. 3d 323, 341 N.E.2d 419.\nFor the reasons cited herein, the judgment of the trial court is affirmed.\nAffirmed.\nSULLIVAN, P. J\u201e and WILSON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE MEJDA"
      }
    ],
    "attorneys": [
      "Axelrood, Axelrood & Axelrood, of Chicago (Seymour C. Axelrood and Paul Ben Axelrood, of counsel), for appellants.",
      "Fisch, Lansky & Greenberg, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "NICK HAREAS, Plaintiff-Appellee, v. BILL G. KYRIAKOPOULOS et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 80-2424\nOpinion filed August 14, 1981.\n\u2014 Rehearing denied November 19, 1981.\nAxelrood, Axelrood & Axelrood, of Chicago (Seymour C. Axelrood and Paul Ben Axelrood, of counsel), for appellants.\nFisch, Lansky & Greenberg, of Chicago, for appellee."
  },
  "file_name": "0393-01",
  "first_page_order": 415,
  "last_page_order": 418
}