{
  "id": 4949009,
  "name": "Fruehauf Trailer Company, Appellee, v. Albert M. Lydick, Appellant",
  "name_abbreviation": "Fruehauf Trailer Co. v. Lydick",
  "decision_date": "1944-12-19",
  "docket_number": "Gen. No. 43,129",
  "first_page": "28",
  "last_page": "53",
  "citations": [
    {
      "type": "official",
      "cite": "325 Ill. App. 28"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "category": "reporters:state",
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  "last_updated": "2023-07-14T21:56:22.508325+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Fruehauf Trailer Company, Appellee, v. Albert M. Lydick, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Sullivan\ndelivered the opinion of the court.\nThis action was brought by plaintiff, Fruehauf Trailer Company, to recover a balance of $336.98 claimed to be due from defendant, Albert M. Lydick, for repairs made to one of his trailers. Defendant filed a counterclaim for damages alleged to have resulted from plaintiff\u2019s wrongful refusal to deliver to him a bill of sale for another and different trailer which he had purchased from the Fruehauf Trailer Company and fully paid for. The case was tried before the court without a jury and judgment for $211 was entered in favor of plaintiff on its statement of claim and judgment was entered against defendant on his counterclaim. Defendant appeals from both judgments.\nAlthough plaintiff\u2019s statement of claim averred that the balance due it for repairs to one of defendant\u2019s trailers was $336.98, at the opening of the trial its counsel offered to prove that the balance due for such repairs was $211, which offer defendant accepted.\nDefendant\u2019s amended counterclaim alleged substantially that on February 15, 1941 he purchased a Fruehauf trailer from plaintiff on a conditional sale contract; that he completed the payments thereon on September 24, 1942; that \u201csince September 24, 1942, the defendant has requested from the plaintiff a bill of sale or other evidence of title to the said trailer but the plaintiff has refused and still refuses to give the defendant a bill of sale to the said trailer and has based its refusal on the unwarranted grounds that the defendant was indebted to the plaintiff on the claim herein sued upon\u201d; that \u201cbecause of the plaintiff\u2019s refusal to give the defendant the bill of sale or other evidence of title, the defendant has been unable to obtain an Illinois license for the said trailer and has, therefore, been unable to use the said trailer\u201d; that \u201cthere is a great demand for the use of trailers such as defendant\u2019s during the present emergent conditions and has been since the start of the war and if the defendant had had the use of the said trailer since October, 1942, he would have earned from the use of the said trailer approximately $10.00 per day\u201d; and that \u201cplaintiff has thereby deprived the defendant of the use of the said trailer and prevented him from earning a sum approximating $2,100.00 and this action upon the part of the plaintiff has been wilful and malicious and unwarranted.\u201d The counterclaim concluded with a prayer for the allowance \"to defendant of $2,100 damages against plaintiff. Plaintiff\u2019s answer to the amended counterclaim consisted merely of a general denial of the facts alleged therein.\nThe conditional sale contract contained the following provision:\n\u201cTitle to said goods is now and shall remain in Seller until the sum aforesaid, with interest, shall be fully paid. When the total purchase price herein provided for has been paid and all conditions hereunder have been satisfied by the buyer, it is agreed that the title papers to said goods, together with proper evidence of satisfaction of this contract, shall be delivered to the buyer.\u201d\nSection 17 of the Illinois Motor Vehicle Act (par. 18, ch. 95\u00bd, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.018]) provides in part as follows:\n\u201cUpon the sale of a motor vehicle by a manufacturer or dealer, he shall thereupon give to the purchaser a bill of sale setting forth the name and address of the purchaser, the date of purchase, together with a description of such motor vehicle . . . . \u201d\nDefendant made his final payment on the trailer on September 24,1942 and at that time he did not receive a bill of sale for said trailer, although he demanded same. His persistent and repeated demands for a bill of sale over a period of several months were evaded and he finally received a letter from plaintiff, dated January 22, 1943, which contained the following statement :\n\u201cYou asked that if we are unable to find this title to please send you a notarized bill of sale, covering this unit. However, in checking my records, I find that you are indebted to us for approximately $350.00 which has been turned over to the United Mercantile Agency, in Louisville, Ky. for collection and until this account is settled in full, we do not see our way clear to issue a title to this trailer.\n\u201cIf you will take care of this item with the United Mercantile Agency and have them advise us that the account has been settled, we will then furnish you with a bill of sale.\u201d\nPrior to the time the trailer in question was completely paid for it had not been operated in Illinois but when the final payment was made thereon defendant apprised plaintiff that he wanted to use it in this state. Plaintiff, being engaged in the manufacture and sale of trailers and having a place of business in this state, knew or should have known that defendant could not operate his trailer in Illinois without procuring a license therefor and that before he could secure a license he first had to get a certificate of title, which the secretary of state would not issue to him without a bill of sale showing his title to and ownership of the trailer. There is evidence in the record that defendant and his wife attempted on numerous occasions to secure a certificate of title and license without a bill of sale but they were unsuccessful in such attempts because the secretary of state was not authorized to receive an application for a certificate of title unless the application included \u201ca bill of sale or statement of transfer by the seller.\u201d (Sec. 4(b), par. 77, ch. 95\u00bd, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.078, subpar. (b)]).\nIt will be noted from the foregoing excerpt from plaintiff\u2019s letter to defendant of January 22, 1943 that the only reason advanced therein for its refusal to issue a bill of sale to defendant was the latter\u2019s failure to pay plaintiff an indebtedness of $350. It appears that the indebtedn\u00e9ss referred to was for repairs made to a different trailer and, while defendant admitted that he owed plaintiff for work done on the other trailer, he insisted that the amount claimed for such repairs was exorbitant. That such claim was exorbitant is indicated by plaintiff\u2019s willingness upon the trial to accept $211 for the repairs, although in its letter of January 22, 1943, it claimed $350 therefor and in its statement of claim $336.98. Defendant was willing and anxious at all times to pay what he actually owed for the repairs. In any event the transaction involving plaintiff\u2019s claim for repairs was entirely unrelated to defendant\u2019s0right to a bill of sale for the trailer which he had fully paid for. Plaintiff\u2019s withholding of the bill of sale until defendant paid the admittedly exorbitant charge for repairs to another trailer can only be regarded as a sharp and tricky practice adopted by it to .compel defendant to pay an unfair bill.\nThat there was no justification for its refusal to give defendant a bill of sale for the trailer must be conceded by plaintiff, since it offered no valid explanation or reason for such refusal in the trial court and.it offers none here. There can be no question but. that by reason of its wrongful conduct in refusing to issue to defendant a bill of sale, \u201ctitle papers\u201d or \u201cevidence of the satisfaction of the contract\u201d plaintiff breached its contract and violated its statutory duty and thereby unlawfully deprived defendant of the use of his trailer. Neither can there be any question but that defendant is entitled to recover damages for the loss of the use of his trailer. This brings us to the proper measure of damages applicable to this case, which presents a sui generis situation as to damages due to war conditions.\nAlthough the trial judge apparently recognized that the enforced idleness of defendant\u2019s trailer resulted from plaintiff\u2019s wrongful conduct in deliberately refusing to issue a bill of sale therefor, he held that defendant was not entitled to recover any damages and stated his reasons for so holding as follows:\n\u201cIt seems to me that the damages claimed are too remote or indirect. If defendant was entitled to a Bill of Sale or other title papers after payment of the contract had been made in full and such Bill of Sale or other title papers, were refused, then it seems to me the measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract. The damages claimed are not the natural and probable result of such refusal.\u201d The trial judge apparently assumed that defendant\u2019s only recourse was under the provisions of the Uniform Motor Vehicle Anti-Theft Act, hereinafter discussed, which, as will be seen, did not apply.\nIn its endeavor to sustain the refusal of the trial court to find the issues in favor of defendant on his amended counterclaim, plaintiff contends that \u201cdefendant\u2019s failure to obtain an Illinois title and license resulted from his own neglect, not from plaintiff\u2019s refusal to give him a bill of sale,\u201d and cites in support of -such contention the following portion of section 4(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 77, ch. 95\u00bd, Ill. Rev. Stat. 1943 [Jones Ill. Stats. 85.078, subpar. (b)]):\n\u201c. . . Where application is made for a certificate of title for a new or used motor vehicle not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of ownership in the purchaser or transferee, the Secretary of State shall not issue a certificate of title therefor, but shall, upon payment to him by said applicant of the sum of twenty dollars ($20.00) as a fee for title investigation, cause a thorough investigation to be made of the source and antecedents of such title and the right of such applicant to a certificate of title.\n\u201cIf, as a result of any investigation of title herein authorized, the Secretary of State is satisfied as to the validity of the title and ownership of the applicant, he shall issue a certificate of title in accordance with the terms of this Act.\u201d\nThis portion of section 4(b) of the statute has no application to the situation presented here. Reference is made therein to motor vehicles \u201cnot previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of qjvnership. \u201d The sale of the trailer to defendant was made under one of the \u201cabove enumerated conditions\u201d establishing a prima facie case of ownership in him but he was unable to present prima facie evidence of his ownership solely because of plaintiff\u2019s unwarranted and wrongful refusal to give him the bill of sale he was legally entitled to receive. Preceding the portion of section 4(b) quoted by plaintiff that section also contains the following provision: \u201cWhenever application is made for a certificate of title for a motor vehicle for which a certificate of title has not previously been issued in this State, such application shall include a bill of sale or statement of transfer by the seller. . . .\u201d Because of defendant\u2019s inability to include a bill of sale in his application for certificate of title the secretary of state was neither authorized nor required under section 4 (b) of the Motor Vehicle Anti-Theft Act to accept an application from him for a certificate of title or to investigate his title to the trailer. Our attention is also called to sections 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 82, ch. 95\u00bd, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.083, subpars. (a), (b)]), which provide in part as follows: \u201cIf the Secretary of State shall determine that an applicant for a Certificate of Title to a motor vehicle is not entitled thereto, he may refuse to issue such certificate and to register such motor vehicle .... Any person denied a Certificate of Title . . . may, within ninety (90) days thereafter, file a petition in the Circuit Court . . . for a hearing or review, and such court . . . shall thereupon hear such cause and enter such order as may be proper. \u2019 \u2019 The foregoing provision for review by the circuit court of the action of the secretary of state in refusing to issue a certificate of title cannot apply here since, because of plaintiff\u2019s wrongful conduct, defendant never could or did present a proper or valid application for a certificate of title upon which the secretary of state was authorized? or required to take any action.\nOther than its reliance upon sections 4(b) and 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act, plaintiff makes no effort in its brief to support the proposition advanced by the trial court that \u201cthe measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract.\u201d The trial court did not point out and neither does plaintiff in its brief any prompt and certain remedy available to defendant to compel plaintiff to give him a bill of sale.\nIt is contended that \u201cthe damages sought to be recovered by defendant were speculative and remote, for which no recovery could be had.\u201d It is sufficient answer to this contention to state that plaintiff knew that defendant was in the trucking business, that there was an unusual demand for the use of trailers of this kind and that defendant would suffer loss if he was unable to use the trailer because of its refusal to give him a bill of sale so that he could procure a certificate of title and a license. Mot only are the damages claimed by the defendant neither remote nor speculative but they are such as plaintiff must have known would result directly and as a natural and probable consequence of its refusal to issue the bill of sale.\nPlaintiff contends that \u201cdefendant failed to mitigate the alleged damages and failed to exercise reasonable care and diligence to avoid loss and to minimize any resulting damages.\u201d We are not unmindful of the rule that a party being damaged cannot stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. But defendant was helpless under the circumstances. He not only made every reasonable effort but every possible effort to prevail upon plaintiff to issue the bill of sale to him. It appears conclusively that defendant was powerless to do any more than he did do to prevent his damages from increasing as a result of plaintiff\u2019s continued wrongful conduct. It was solely within the control of plaintiff to prevent any injurious consequences to defendant by giving him the bill of sale when he was entitled to it. It was also solely within its control to give him a bill of sale on any day thereafter up to the time of the trial and thus prevent his damages from continuing and increasing. It is stated in defendant\u2019s brief and not denied that plaintiff still refuses to issue the bill of sale. Defendant was even precluded from selling the trailer and thereby mitigating the damages because he could not sell it without a certificate of title.\nThe wrongful conduct of plaintiff had its inception in its endeavor to intimidate and compel defendant to pay an unfair and exorbitant bill for repairs to another trailer by refusing to issue to him a bill of sale for the trailer involved in his counterclaim and, as already shown, such refusal and continued refusal utterly disregarded plaintiff\u2019s contractual and statutory duty. Without fault or neglect on defendant\u2019s part and solely by reason of the deliberate, wrongful and wilful conduct of plaintiff, Lydiek was deprived of the use of his trailer and we are impelled to hold that plaintiff should be required to pay such damages as defendant sustained as a result of the loss of the use of his trailer.\nIn our opinion the proper measure of damages for plaintiff\u2019s wrongful conduct in depriving defendant of the use of his trailer is the reasonable use or rental value thereof (sec. 83 (c), p. 600, 25 C. J. S.). Defendant\u2019s uncontradicted evidence shows clearly that the reasonable use or rental value of this twenty-four foot trailer was from $7 to $10 per day. Having shown the reasonable use or rental value of the trailer per day, it was also incumbent upon defendant to prove the actual number of days it could and would have been used in his business or could and would have been rented, if he had a license for it.\nDefendant Albert M. Lydick testified that from the time he purchased the trailer in question until it was completely paid for and plaintiff refused to give him a bill of sale for it, he used it continuously seven days a week; that from December, 1941 to the time of the trial \u201cthere has been a big demand for trailers and tractors, being that the country is at'war, there has been a terrific demand because ODT had closed all building of new equipment, and even old equipment is pulled out of the junk yards and reconditioned in order to do hauling today. The equipment is very scarce ... I have not been able to license it and I have never been able to use it\u201d since \u201cthe forepart of October, 1942\u201d; and that from \u201cthe beginning of October, 1942 down to the present time,\u201d requests or demands were made of me \u201cfor the use of a trailer for hauling or for entering into hauling contracts or for doing trucking and leasing . . . the demands come in there regularly, I have had as high as two a day, and there was not a week went by but what I would get a demand for the equipment. \u2019 \u2019\nEarl Beaty, one of the three experts who testified as to the fair and .reasonable use or rental value of the trailer, also stated that \u201cin December of \u201941 the Government froze all sales on the selling of new equipment, tractors and trailers and due to that fact it created an unusual demand for the old equipment and due to the fact that there is considerable tonnage with new manufacturing, the operators earned considerably more money the following years, than previously\u201d; and that there was a steady demand \u201cfrom then until now. \u2019 \u2019\nEleanor Lydick after stating that she was the bookkeeper and general helper of her husband in his trucking business, testified in part on her direct examination as follows:\n\u2018 \u2018 Q. Are you familiar with the trailer that is in dispute here between Fruehauf and yourself? A. Tes, I am. Q. Do you know the trailer? A. Tes. Q. You have seen it? A. Yes. Q. Originally and continuously? A. Yes. Q. Since October 1942 and before? A. Yes. Q. Has that trailer been used? A. We used it for a period of time . . . and it amounts to seventy-five days, to be exact. Q. Seventy-five days? A. Yes sir. . . . Q. Mrs. Lydick, to your knowledge, do you know how many days this twenty-four foot van of Fruehauf that is in dispute here was not used by you or by Mr. Lydick in your business because of your inability to obtain a certificate of title and a license? A. I figured out 397 days. Q. 397 days? A. Yes. Q. When does that start? A. That starts on October 16th of 1942. Q. And terminates when? A. Terminates the end of January of this year [1944]. . . . Q. And does that exclude the 75 days that you have referred to? A. Yes, it does. Q. And so there is a net of 397 days? A. That is right.\u201d\nIt also appeared that defendant used the trailer illegally without an Illinois license for the 75 days Mrs. Lydick referred to in her testimony; and that after defendant had rented another trailer for two or three weeks at $72 a week, he purchased same and used it in his business for a considerable period and then sold it at a profit.\nThe foregoing comprises all the evidence in the record concerning the constant demand for the use of trailers generally and for the use of the trailer in question. Not only was it shown by Lydick\u2019s testimony that there was a persistent, steady demand for the use of his trailer but his wife testified that the trailer \u201cwas not used\u201d in defendant\u2019s trucking business for 397 days between October 16, 1942 and January 31, 1944, solely because he was unable \u201cto obtain a certificate of title and a license.\u201d Mrs. Lydick\u2019s testimony made out a prima facie case that the trailer could and would have been used 397 days in her husband\u2019s business if plaintiff had not wrongfully deprived him of its use by its unwarranted conduct in refusing to give him a bill of sale. Plaintiff offered no evidence to contradict her testimony and neither was it impeached in any manner.\nAs has been seen, at some unstated time during the period involved herein defendant purchased another trailer which he used in his business and later sold at a profit. Plaintiff contends that defendant is not entitled to damages for loss of the use of the trailer in question during the period,the newly purchased trailer was used in its place and stead. There is not the slightest merit in this contention. The mere fact that defendant made an advantageous purchase of another trailer instead of renting one to use in his business in place of the Pruehauf trailer cannot inure to plaintiff\u2019s benefit. The fact still remains that defendant lost the use .of his trailer during said period, when it could have, been used or rented if he had a license for it. On the whole, plaintiff\u2019s theory seems -to be that it could wrongfully prevent the use of defendant\u2019s trailer indefinitely and until it had become worthless by refusing to issue the bill of sale to him and the defendant would still have no recourse against it for damages.\nWe hold that the evidence submitted by defendant meets the test of definiteness required by law to support an award of damages to him on his amended counterclaim for the loss of the use of his trailer for 397 days, which loss at the rate of $7 per day, amounts to $2,779. Said 397 days does not include the 75 days\u2019 illegal use of the trailer by defendant without an Illinois license. Inasmuch as defendant\u2019s ad damvmm was stated to be $2,100 in his amended counterclaim, that is the maximum amount of damages that may be allowed him on said counterclaim. Deducting $211, the amount of damages allowed1 plaintiff on its statement of claim, from the $2,100 which defendant is entitled to recover on Ms amended counterclaim, leaves a balance of $1,889, for wMck amount judgment should be rendered against plaintiff and in favor of defendant.\nInasmuch as this case was tried without a jury it would serve no useful purpose to remand it to the trial court.\nFor the reasons stated herein the judgments of the municipal court of Chicago are reversed and judgment is entered here for $1,889 against plaintiff and in favor of defendant on the latter\u2019s amended counterclaim.\nJudgments reversed and judgment here.\nFriend and Scanlan, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice Sullivan"
      },
      {
        "text": "On Rehearing.\nMr. Presiding Justice Sullivan\ndelivered the opinion of the court.\nThis action was brought by plaintiff, Fruehauf Trailer Company, to recover a balance of $336.98 claimed to be due from defendant, Albert M. Lydick, for repairs made to one of his trailers. Defendant filed an amended counterclaim for damages alleged to have resulted from plaintiff\u2019s wrongful refusal to deliver to him a bill of sale for another and different trailer which he had purchased from the Fruehauf Trailer Company and fully paid for. The case was tried before the court without a jury and judgment for $211 was entered in favor of plaintiff on its statement of claim and judgment was entered against defendant on his counterclaim. Defendant appealed from both judgments. In an opinion filed December 19, 1944 we reversed both judgments and entered judgment here for $1,889 against plaintiff and in favor of defendant on the latter\u2019s amended counterclaim. We arrived at the amount defendant was entitled to recover by awarding him $2,100 damages and deducting therefrom $211, the amount of damages the trial court properly allowed plaintiff on its statement of claim. Plaintiff\u2019s petition for rehearing was allowed January 3, 1945. Said petition concedes plaintiff\u2019s liability to defendant as alleged in his amended counterclaim. The only questions now before us pertain to the amount of damages defendant is entitled to recover and the proper measure of damages to be applied.\nDefendant purchased a twenty-four foot automobile trailer for use in his trucking business from plaintiff on a conditional sale contract. When he made his final payment thereon on September 24, 1942, plaintiff wrongfully refused to give him a bill of sale for such trailer as it was obligated to do under the terms of the purchase contract. Plaintiff had not given defendant a bill of sale for the trailer up to the time the trial of this case commenced on February 4, 1944. By reason of plaintiff\u2019s wrongful refusal to give defendant the bill of sale he was precluded under the provisions of the Illinois Motor Vehicle Act (ch. 95\u00bd, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.001 et seq.]) from procuring a certificate of title to the trailer or a license to operate same in this state. Thus defendant was deprived of the use of his trailer from September 24, 1942, when he made his final payment on same and his demand for a bill of sale was refused, until February 4, 1944, the date of the trial. However, defendant presented proof of his damages only for the period from October 16, 1942 to January 31, 1944.\nPlaintiff suggests that in our original opinion we overlooked the point made in plaintiff\u2019s brief that \u201cin including in its judgment alleged damages occurring subsequent to the filing of defendant\u2019s counterclaim this court overlooked the well settled, affirmative rule of law that where the injury and damages sued for are the result of repetition or continuing acts of the same class, recovery is limited solely to the actual damages suffered to the date of the commencement of suit and that no recovery may he had for damages suffered thereafter to the date of trial.\u201d This precise point was not made in plaintiff\u2019s brief but it did contend therein that \u2018 defendant cannot recover o.n his counterclaim for any claim or demand which was not due at the time the plaintiff brought its action.\u201d One case, Ellis v. Cothran, 117 Ill. 458, was cited in support of this latter t\u00edontention and that case, in our opinion, had no application to the factual situation presented here. Furthermore, there was nothing in plaintiff\u2019s argument in its brief under this point that tended in anywise to show that there was any merit in it. We did not overlook the point as made in plaintiff\u2019s brief but disregarded it as not meriting serious consideration.\nWe will now consider the point first above quoted as made in the petition for rehearing, although it differs in some respects, from the comparable point made in plaintiff\u2019s brief.\nIn its petition for rehearing plaintiff cites 25 C. J. S. (see. 193, p. 908) for the following rule:\n\u201cWhere the injury sued for is caused by a mere repetition or continuing of acts of the same class, plaintiff\u2019s recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit.\u201d\nOur attention is called to a number of cases in this and other jurisdictions which it is asserted support this rule. It may be agreed that they do, but the rule applies, as stated therein, \u201cwhere the injury sued for is caused by a mere repetition or continuing of acts of the same class.\u201d That rule can have no application to the facts in this case. Here the injury was caused not by \u201crepetition or continuing of acts of the same class\u201d but by one act \u2014 plaintiff\u2019s wrongful conduct in refusing to deliver the bill of sale to defendant when he had completely paid for the trailer. It cannot be said that, because plaintiff was unyielding and did not see fit up to the time of the trial to reconsider its refusal to give defendant a bill of sale, such \u2018failure to reconsider constituted \u201crepetition or continuing of acts of the same class.\u201d While the injurious effects'and consequences of plaintiff\u2019s wrongful conduct continued after this suit was filed and after defendant had filed his counterclaim, there was no repetition or continuance of acts in this case as contemplated in the aforesaid rule. Plaintiff\u2019s attitude can best be\" characterized as an inflexible determination from the outset to refuse to give defendant a bill of sale, although he was entitled to same under the contract of purchase.\nThe rule plaintiff relies upon was selected from a number of rules (25 C. J.. S., sec. 193) applicable .to various situations in which damages resulting before or after the commencement of an action may or may not be recoverable therein.. Two other rules are stated in the same section of 25 C. J. S., either of which, in our opinion, is applicable here. We quote not only these two rules but the rule plaintiff relies upon as it appears in the text of section 193, 25 C. J. S., at p. 908:\n\u201cPlaintiff may recover for any damage which manifests itself up to the time of the verdict, where the thing complained 'of is a particular act occasioning a tortious injury to the person, or property, or where the wrong consists in the breach of a contract. Where the injury sued for is caused by a mere repetition or continuing of acts of the same class, plaintiff\u2019s recovery is limited to the damages resulting from such of those acts as were done before the bringing of the suit. . . . Where, however, the same wrongful act produces both immediate and future injury, independent of any subsequent wrongful acts, all damages resulting before or after commencement of the action may be recovered therein.\u201d (Italics ours.)\nThe wrong in this case \u201cconsists in the breach of a contract\u201d by plaintiff and the damages resulting to defendant before and after the commencement of this action were produced by the same wrongful act \u201cindependent of any subsequent wrongful acts.\u201d\nIn Sutherland on Damages, 4th Ed., see. 113, the author says at p. 388:\n\u201cIt is not essential, however, that all the injurious effects of the act which constitutes the cause of action should have been developed and suffered before suit; it is immaterial to the right to recover for them when the effects manifest themselves with reference to the time of bringing the suit. But it is practically material to the plaintiff that the effects be so manifest, before and at the time of the trial, as to be susceptible of proof. The actual effects down to the time of the trial are provable; and whether those which may ensue later may be taken into account will depend on whether they are imminent and sufficiently certain. . . . But whether continuing damages may be computed after the commencement of the suit will depend on whether they proceed from the act complained of in that suit as the cause of action, or from some later act constituting a fresh cause of action.\u201d\nThere can be no question but that plaintiff\u2019s breach of its contract and wrongful refusal to deliver a bill of sale to defendant when he was entitled to receive same on September 24, 1942 deprived him of the use of his trailer from said date up to February 4, 1944, the date of the trial. There is no merit in plaintiff\u2019s instant contention and we hold that defendant is not limited to the recovery of damages suffered by him prior to the date of the commencement of this suit or the filing of his counterclaim but that he is entitled to recover all damages resulting before or after the commencement of this suit and up to the date of trial.\nThe second-point made in plaintiff\u2019s petition for rehearing is that \u201cin allowing damages at the rate of $7.00 per day, this Honorable Court overlooked or misapprehended the fact that defendant\u2019s own evidence established his loss, if any, to be an amount substantially less than $7.00 per day.\u201d\nOn the basis of evidence presented, by defendant, which was recited in our original opinion, we held that it was-established with the definiteness required by law that the reasonable use or rental value of defendant\u2019s trailer was $7 a day. Plaintiff presented no evidence but insists that defendant\u2019s own evidence shows that the reasonable use or rental value of the trailer was not $7 a day but $4.83 a day.\nDefendant testified that by reason of his experience in .using the trailer in question and other trailers over a long period of time and particularly by reason of his experience in the use of another trailer of the same size, style and type for the one-year period from March 15, 1942 to March 15, 1943, he determined that the reasonable use or rental value of his Fruehauf tr\u00e1iler was from $7 to $10' a day. He further testified that the use or rental value of a trailer such as that involved herein is figured on the basis of 18 to 20 per cent of the gross freight revenue earned. The record discloses that the gross revenue earned by the aforementioned trailer \u25a0 over the one-year period from March 15, 1942 to March 15, 1943 was $9,804.05. Plaintiff computed its use or rental value at $4.83 a day by taking 18 per cent of $9,804.05 or $1,764.75 as the use or rental value of that trailer for the year and dividing $1,764.75 by 365, the number of days in a year.\nAfter reconsidering all the evidence in the record bearing on the question as to the reasonable use or rental value of the trailer per day, we have concluded that there is merit in plaintiff\u2019s contention that the evidence showed that the average net use or rental value of the trailer was $4.83 a da;, as computed by it, and that $4.83 per day is the proper measure of defendant\u2019s damages for the loss of the use of the trailer.\nThe evidence as to the constant demand for trailers because of war production and the consequent need of all available means of transportation and the further undisputed evidence that the trailer in question could have been used in defendant\u2019s business for 397 days (from October 16, 1942 to January 31, 1944) if he had been able to secure a certificate of title and license for it, has been fully set forth and discussed in our original opinion and we deem it unnecessary to indulge in further discussion of such evidence here.\nWe hold that the evidence shows with reasonable certainty that defendant was wrongfully deprived of the use of his trailer for 397 days and that he should be compensated for such loss at the rate of $4.83 a day.\nPlaintiff\u2019s final point is that \u201cthe Court has by its judgment denied to plaintiff the benefit of affirmative rights granted it under the rules of law respecting mitigation of damages.\u201d We stated in our original-opinion that we were not unmindful \u201cof the rule that a party being damaged cannot stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. \u2019 \u2019 Although plaintiff insisted in the trial court and in his brief filed in this court that the reasonable use or rental value of defendant\u2019s trailer during the time that he was wrongfully deprived of the use thereof was not the proper measure of damages to be applied to the facts in this case, it is now compelled to concede that it is. Plaintiff has also heretofore contended that the damages sought to be recovered by defendant were speculative and remote, not in the contemplation of the parties and could not be determined with any degree of certainty. It now admits in its petition for rehearing that if defendant had rented another trailer and put it \u201cto the use to which he would have put the trailer in question\u201d the rent of such trailer \u201ccould he recovered as damages.\u201d Since defendant would have earned $4.83 a day by the use of the trailer if he had not been deprived of the use thereof and he would have had to pay the same amount for the rent of another trailer, which rent plaintiff concedes \u201ccould be recovered as damages,\u201d he was under no obligation to rent a trailer since, to do so, would not have lessened his damages. It is immaterial under the facts of this case whether or not defendant rented another trailer, because the damages recoverable for loss of use of Ms own trailer or for the expense of renting another trailer would have been identical in amount.\nIt is also asserted that when it became evident to defendant that plaintiff would not furnish him a bill of sale it was Ms duty, if he elected not to rent another trailer, to purchase one for use in place of the trailer in question and that \u201cthe amount of damages would be reduced to interest on the amount of money paid by defendant for another trailer.\u201d No such contention as this was made by plaintiff in the trial court or in its brief. It appeared that defendant did purchase another trailer and plaintiff\u2019s claim as to the effect of such purchase on defendant\u2019s damages was treated in our original opinion as follows:\n\u201cAt some unstated time during the period involved herein defendant purchased another trailer which he used in his business and later sold at a profit. Plaintiff contends that defendant is not entitled to damages for loss of the use of the trailer in question during the period the newly purchased trailer was used in its plac,e and stead. There is not the slightest merit in this contention. The mere fact that defendant made an advantageous purchase of another trailer instead of renting one to use in his business in place of the Fruehauf trailer cannot inure to plaintiff\u2019s benefit. The fact still remains that defendant lost the use of his trailer during said period, when it could have been used or rented if he had a license for it. \u2019 \u2019\nPlaintiff cites no authority for its instant contention that it was defendant\u2019s duty to purchase another trailer to replace the one involved herein and that defendant\u2019s \u201cdamages under such circumstances are limited to interest on the purchase price of the trailer for the period of his ownership thereof.\u201d No such rule could possibly apply to the facts, of this case. Defendant lost the use of Ms trailer by reason of plaintiff\u2019s wrongful conduct and that loss was not in anywise alleviated by his purchase of the other trailer. Neither were defendant\u2019s damages emanating from such loss reduced in the slightest degree by said purchase. Plaintiff had sole control of the situation and we cannot-conceive how defendant, even exercising the highest degree of care, could have prevented, lessened, minimized or avoided any of the damages suffered by him.\nPlaintiff seemingly does not appreciate or want to appreciate that by its wrongful conduct it compelled defendant\u2019s trailer to remain idle and useless from September 24, 1942 to February 4,1944, with the exception of 75 days when he operated it illegally in this state without a license and that during such period of enforced idleness he suffered a complete loss of the money his trailer would have otherwise earned. It is inconceivable how this loss could have been reduced even if defendant had rented or purchased another trailer to use in its place and stead during all of the time it was forced to remain idle.\nThe law respecting mitigation of damages is fully and clearly stated in Cedar Rapids & I. C. Ry. & Light Co. v. Sprague Elec. Co., 280 Ill. 386. There the court said at p. 391:\n\u2018 \u2018 Sutherland, in his work on Damages, says (sec. 88): \u2018The law imposes upon a party injured from another\u2019s breach of contract or tort the active duty of making reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, \u2014 that which was avoidable by the performance of his duty, \u2014 falls upon him. This is a practical duty under a great variety of circumstances, and as the damages which are suffered by a failure to perform it are not recoverable, it is a duty of great importance. Where it exists, the labor or expense which its performance involves is chargeable to the party liable for the injury thus mitigated. In other words, the reasonable cost of the measures which the injured party is bound to take to lessen the-damages, whether adopted or not, will measure the compensation the party injured can recover for the injury, or the part of the injury that such measures have or would have prevented. \u2019 This text is sustained by a large number of .decisions cited in the notes. Many other decisions are cited in 15 R. C. L. 442, where it is announced as a fundamental rule that a person who is exposed to injury by another\u2019s wrong or negligence, whether tortious or through the breach of a contract, must use reasonable care and diligence to avoid loss or minimize the damages, and that so far as the damages result from his failurfe to use such care and diligence he cannot recover. The person seeking to recover damages caused by a defective construction of property is required to use reasonable efforts to protect himself, from loss, and can only recover such damages as he could not have avoided by the exercise of reasonable diligence.\u201d\nThe law as stated in the Sprague case applies only where the injured party could have avoided loss or minimized the damages by the use of reasonable care and he failed to use such care. Under such circumstances he is precluded from recovering damages for as much of his loss as he could reasonably have avoided. As already stated, that rule can have no application here since defendant was helpless under the peculiar facts of this case and could not possibly have avoided any of the loss for which he claims damages. He could not even sell the trailer, because plaintiff\u2019s wrongful refusal to give him a bill of sale prevented him from procuring a certificate of title, without which he could not legally sell it. We fail to perceive how under any theory the fact that defendant purchased another trailer could relieve plaintiff from its liability to respond in damages to him for wrongfully depriving him of the use of the trailer in question.\nWe hold that defendant is entitled to recover damages for the loss of the use of his trailer for 397 days, which loss, at the rate of $4.83 a day, amounts to $1,917.51. Said 397 days does not include the 75 . days\u2019 illegal use of the trailer by defendant without an Illinois license. Deducting $211, the amount of damages properly allowed plaintiff on its statement of claim, from the $1,917.51, which defendant is entitled to recover on his amended counterclaim, leaves a balance of $1,706.51, for which amount judgment should be rendered against plaintiff and in favor of defendant.\nThe judgments of the municipal court of Chicago are reversed and judgment is entered here for $1,706.51 against plaintiff and in favor of defendant on the latter\u2019s amended counterclaim.\nJ%idgments reversed and judgment here.\nFriend and Scahlan, JJ., concur.",
        "type": "rehearing",
        "author": "Mr. Presiding Justice Sullivan"
      }
    ],
    "attorneys": [
      "Seymour M. Lewis, of Chicago, for appellant; Theodore Rubovits and Julius M. Lorenz, both of Chicago, of counsel.",
      "M. M. Loman, of Chicago, for appellee; Albert E. Jenner, Jr., counsel on rehearing."
    ],
    "corrections": "",
    "head_matter": "Fruehauf Trailer Company, Appellee, v. Albert M. Lydick, Appellant.\nGen. No. 43,129.\nHeard in the second division of this court for the first district at the June term, 1944.\nOpinion filed December 19, 1944.\nRehearing opinion filed February 13, 1945. Released for publication March 5, 1945.\nSeymour M. Lewis, of Chicago, for appellant; Theodore Rubovits and Julius M. Lorenz, both of Chicago, of counsel.\nM. M. Loman, of Chicago, for appellee; Albert E. Jenner, Jr., counsel on rehearing."
  },
  "file_name": "0028-01",
  "first_page_order": 48,
  "last_page_order": 73
}