{
  "id": 3478157,
  "name": "VINCENT J. SCHREIBER, Plaintiff-Appellant, v. ROBERT E. HACKETT, Defendant-Appellee",
  "name_abbreviation": "Schreiber v. Hackett",
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  "docket_number": "No. 87\u20140158",
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  "last_updated": "2023-07-14T14:33:51.483362+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "VINCENT J. SCHREIBER, Plaintiff-Appellant, v. ROBERT E. HACKETT, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nPlaintiff appeals from an order granting defendant\u2019s motion to dismiss plaintiff\u2019s complaint on the ground that the action is barred by the statute of limitations. Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 619(a)(5).\nBoth parties are commodities traders. On September 22, 1980, plaintiff loaned defendant $2,500 in consideration of defendant\u2019s oral promise to repay the loan on demand. Plaintiff made a demand for repayment on October 10, 1985, and again on November 13, 1985. On each occasion, defendant refused to repay the $2,500.\nOn February 27, 1986, plaintiff filed this action to recover the loan. The parties agree that the applicable statute of limitations is five years. (Ill. Rev. Stat. 1985, ch. 110, par. 13 \u2014 205.) Defendant\u2019s section 2 \u2014 619 motion to dismiss alleged that the statute of limitations began to run on September 22, 1980, which is the date on which the loan was made. Plaintiff contends that the statute of limitations started to run on October 10, 1985, when plaintiff demanded repayment. The trial court agreed with the defendant. Since the complaint was filed on February 27, 1986, plaintiff\u2019s action is barred by the five-year statute of limitations. On August 1, 1986, the trial court granted defendant\u2019s motion and dismissed the complaint. On August 29, 1986, plaintiff filed a motion to reconsider. On October 15, 1986, without leave of court, plaintiff filed an affidavit in response to the motion to dismiss. After a hearing, the trial court struck the affidavit and denied plaintiff\u2019s motion to reconsider. Plaintiff appeals.\nIn considering the allegations in plaintiff\u2019s complaint, all well-pleaded facts must be taken as true, as well as all reasonable inferences which may be drawn therefrom. (Wait v. First Midwest Bank (1986), 142 Ill. App. 3d 703, 705, 491 N.E.2d 795, appeal denied (1986), 112 Ill. 2d 597.) Moreover, allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. 142 Ill. App. 3d at 705.\nWhile we are aware of the fine line which distinguishes conclusions of law and ultimate facts, we must construe the pleadings liberally with a view of doing substantial justice between the parties. (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014603(c); see Ingram v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 456, 438 N.E.2d 1194, appeal denied (1982), 92 Ill. 2d 568.) Thus, the allegations that the loan was payable \u201con demand\u201d should not be viewed, at this stage of the proceedings, as a narrow term of art, capable of only one narrow definition.\nAt oral argument, counsel for defendant acknowledged that if plaintiff sued within a week after the oral loan was made without alleging a demand for payment, the complaint would be subject to a motion to dismiss for failing to state a cause of action. A liberal construction of the complaint would not permit an interpretation of \u201con demand\u201d to mean that repayment is due simultaneously with the loan. A more reasonable interpretation would be that the parties contemplated an overt act by the plaintiff, such as a demand for repayment, before defendant would be required to pay.\nGenerally, the statute of limitations begins to run from, and not until, the time that the cause of action or right of action accrues, i.e., when facts exist which authorize the bringing of an action. (Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 673, 425 N.E.2d 1137, appeal denied (1981), 85 Ill. 2d 577.) In the case at bar, the cause of action accrued on October 10, 1985, when plaintiff demanded and defendant refused repayment.\nWhere one promises to render performance \u201con demand\u201d or at a specified time after demand, the reasonable interpretation is that an actual demand for performance is an express condition precedent to the duty of performance. Thus, an action does not lie unless demand has been made and the statute of limitations begins to ru;n from the date of demand. (3A A. Corbin, Contracts \u00a7643 (1960).) We further conclude that a promisor is not regarded as being guilty of a breach prior to demand, which is shown by the fact that interest is awarded as part of the damages only from the date the demand for payment was made. See Restatement of Contracts \u00a7264 (1932).\nThe oral contract at issue was entered into on September 22, 1980, and was payable \u201con demand.\u201d It is evident from the terms of the contract that a cause of action did not accrue until the demand for payment was made on October 10, 1985. We therefore hold that plaintiff\u2019s complaint, which was filed on February 27, 1986, approximately four months after demand was made, was not time barred by the statute of limitations and was, in fact, timely filed.\nPlaintiff also contends that the trial court erred in striking his affidavit because it was filed without leave of court. Whether to consider affidavits filed after a hearing on a motion to dismiss is within the discretion of the trial court. The court\u2019s ruling will not be reversed absent an abuse of that discretion. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 158, 427 N.E.2d 1047.) We do not consider the striking of plaintiff\u2019s affidavit an abuse of that discretion.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded.\nReversed and remanded.\nHARTMAN, P.J., and SCARIANO, J., concur.",
        "type": "majority",
        "author": "JUSTICE BILANDIC"
      }
    ],
    "attorneys": [
      "James A. Hagstrom, of Chicago, for appellant.",
      "Jeffrey T. Saltz, of Morrison, Kamins & Salts, P.C., of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "VINCENT J. SCHREIBER, Plaintiff-Appellant, v. ROBERT E. HACKETT, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 87\u20140158\nOpinion filed July 12, 1988.\nRehearing denied August 5, 1988.\nJames A. Hagstrom, of Chicago, for appellant.\nJeffrey T. Saltz, of Morrison, Kamins & Salts, P.C., of Chicago, for appellee."
  },
  "file_name": "0129-01",
  "first_page_order": 151,
  "last_page_order": 154
}