{ "id": 5102146, "name": "Schoen-McAllister Company, Plaintiff-Appellant, v. Oak Park National Bank, as Trustee Under Trust Number 1333, Defendant-Appellee, and Unknown Owners of Beneficial Interests in Said Trust, Defendants", "name_abbreviation": "Schoen-McAllister Co. v. Oak Park National Bank", "decision_date": "1953-03-09", "docket_number": "Gen. No. 45,969", "first_page": "500", "last_page": "509", "citations": [ { "type": "official", "cite": "349 Ill. App. 500" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "32 P. (2d) 157", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "138 Cal. App. 143", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2234016 ], "opinion_index": 0, "case_paths": [ "/cal-app/138/0143-01" ] }, { "cite": "339 Ill. App. 412", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5011610 ], "opinion_index": 0, "case_paths": [ "/ill-app/339/0412-01" ] }, { "cite": "395 Ill. 154", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2469035 ], "opinion_index": 0, "case_paths": [ "/ill/395/0154-01" ] }, { "cite": "352 Ill. 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5294795 ], "opinion_index": 0, "case_paths": [ "/ill/352/0441-01" ] }, { "cite": "384 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2489801 ], "opinion_index": 0, "case_paths": [ "/ill/384/0283-01" ] }, { "cite": "317 Ill. App. 370", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5647191 ], "opinion_index": 0, "case_paths": [ "/ill-app/317/0370-01" ] }, { "cite": "71 Ariz. 280", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5152568 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/71/0280-01" ] }, { "cite": "379 Ill. 169", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2551539 ], "opinion_index": 0, "case_paths": [ "/ill/379/0169-01" ] }, { "cite": "361 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2597320 ], "opinion_index": 0, "case_paths": [ "/ill/361/0293-01" ] }, { "cite": "78 N. E. (2d) 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "297 N. Y. 848", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2072254 ], "opinion_index": 0, "case_paths": [ "/ny/297/0848-01" ] }, { "cite": "65 N. Y. S. (2d) 505", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "350 Ill. 319", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5301634 ], "opinion_index": 0, "case_paths": [ "/ill/350/0319-01" ] }, { "cite": "364 Ill. 467", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587786 ], "opinion_index": 0, "case_paths": [ "/ill/364/0467-01" ] }, { "cite": "70 Ill. 527", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5309904 ], "opinion_index": 0, "case_paths": [ "/ill/70/0527-01" ] } ], "analysis": { "cardinality": 768, "char_count": 16305, "ocr_confidence": 0.531, "pagerank": { "raw": 7.378351220641272e-08, "percentile": 0.4420533784015979 }, "sha256": "a3f1308c3d717ba65440095c518bb464e6fbf14542dec1c1180ae2f9fd94617e", "simhash": "1:11a9d19823af3cc6", "word_count": 2765 }, "last_updated": "2023-07-14T17:47:31.737390+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Schoen-McAllister Company, Plaintiff-Appellant, v. Oak Park National Bank, as Trustee Under Trust Number 1333, Defendant-Appellee, and Unknown Owners of Beneficial Interests in Said Trust, Defendants." ], "opinions": [ { "text": "Mr. Presiding Justice Friend\ndelivered the opinion of the court.\nPlaintiff, the Schoen-McAllister Company, filed a suit in chancery against the Oak Park National Bank, as trustee (hereinafter referred to as defendant), and the unknown owners of beneficial interests, seeking construction of a store-building lease entered into June 30, 1945 between plaintiff and Oak Park Trust and Savings Bank, the predecessor in interest of the Oak Park National Bank, as trustee.\nDefendant filed a motion to strike the complaint, which was allowed in part and dismissed in part. Thereafter defendant filed an answer and counterclaim, and plaintiff interposed a motion to dismiss the counterclaim. After hearing arguments by the respective counsel, and disposing of the various motions, the chancellor entered a decree on July 21, 1952 disposing of the entire case on the pleadings. Plaintiff appeals from certain parts of the decree.\nThe complaint alleged that defendant\u2019s predecessor and plaintiff executed a lease on June 30,1945 whereby the lessor demised to plaintiff certain premises in the City of Berwyn, Illinois, for the sale of merchandise. A copy of the lease was attached to the complaint. The lease superseded a pre-existing lease made in 1931, under which plaintiff had been in possession of the demised premises.\nUnder the terms of the lease plaintiff was required to pay, as part of the rent reserved thereunder, five per cent of its gross sales up to $200,000 in each year, three and one-half per cent of its gross sales in excess of $200,000 up to an additional $100,000, and five per cent of all gross sales over $300,000. For the year 1950 plaintiff reported gross sales of $383,982.71 and paid rent accordingly. About April 1, 1951 defendant, to whom the lease had been assigned on August 1, 1950, caused an audit to be made of the records of plaintiff for the calendar year 1950 by a firm of public accountants who reported that plaintiff\u2019s gross sales were understated in the amount of $23,895.28, of which amount $15,794.67 represented sales to plaintiff\u2019s employees, and $8,100.61 represented amounts collected from customers on account of the Illinois retailers\u2019 occupation tax. The report stated that both these amounts should be included in gross sales for the purpose of computing rent under the lease. Accordingly, on May 5, 1951, defendant made a five-day demand on plaintiff for the payment of five per cent of the sum of $23,895.28, or $1,194.76.\nPlaintiff conceded that sales to employees should have been included in gross sales for the purpose of computing the rent, but contended that any sums collected for the retailers\u2019 occupation tax should not be so included. In order to prevent any attempt at cancellation of the' lease by the lessor before a judicial determination of the question could be had, plaintiff on May 8,1951, under duress, as it contends, paid to defendant the full sum of $1,194.76 claimed, accompanying the payment with a written notice that $405.03 of said amount, representing five per cent of the amount paid by customers on account of the retailers\u2019 occupation tax, was made under protest and without prejudice to the right of plaintiff to demand and obtain a refund thereof. The complaint therefore prayed (1) that the court enter a decree finding that the amounts collected by plaintiff from customers on account of the retailers\u2019 occupation tax should not be included in gross sales of plaintiff for the purpose of computation of rent under the lease and ordering the repayment by defendant to plaintiff of the sum of $405.03 paid under protest; (2) that the court issue a preliminary injunction restraining defendant from canceling or attempting to cancel the lease on the ground of failure by plaintiff to pay rent computed on the basis of the inclusion of amounts collected from customers on account of the retailers\u2019 occupation tax on gross sales of plaintiff; and (3) that the court by final decree permanently restrain defendant and its agents from canceling or attempting to cancel the lease upon the ground of failure of plaintiff to pay rent as above stated.\nThe two principal grounds set forth by defendant in its motion to strike the complaint and dismiss the suit were: (1) that as to the sum of $405.03 paid by plaintiff, the facts did not constitute duress in law because plaintiff had a complete and adequate remedy by filing a complaint in equity to restrain the cancellation of the lease before this sum was paid to defendant, and that since plaintiff had not availed itself of such remedy the payment was voluntary and could not be recovered; and (2) that plaintiff had not alleged any facts to support a finding that the amount of its gross sales used as a basis for computing the rental payable under said lease should not include the amount of the retailers\u2019 occupation tax paid by plaintiff or to support its right to an injunction to restrain defendant from canceling the lease because of plaintiff\u2019s failure to pay rent computed on the full amount of such gross sales.\nAfter a hearing on the motion to dismiss, the chancellor ordered (1) that the motion be sustained as to the allegations of the complaint with respect to the recovery from defendant of the sum of $405.03 paid under protest, and (2) that the motion be overruled in ' all other respects and as to all other allegations of the complaint.\nDefendant thereafter filed its answer and a counterclaim, the particulars of which need not be recited. No evidence was adduced upon the hearing, and the case was decided solely on the pleadings, to which plaintiff made no objection. In the final decree dismissing the complaint for want of equity, at plaintiff\u2019s cost, the chancellor retained jurisdiction for the purpose of hearing evidence in order to determine the amount of the costs, attorneys\u2019 fees and expenses which the defendant should be entitled to recover.\nThe principal question presented is whether, under the provisions of the lease, plaintiff obligated itself to pay a percentage of the full amount of its sales undiminished by the amount of the tax which plaintiff is required to pay under the Retailers\u2019 Occupation Tax Act (Ill. Rev. Stat. 1951, ch. 120, sec. 440 et seq. [Jones Ill. Stats. Ann. 119.450 et seq.]) or of any other tax or expense. Plaintiff takes the position that the language of the lease is ambiguous and therefore the case should be remanded to permit the litigants to introduce evidence as to the intention of the parties to the lease, and the construction placed by them on the lease; and also, to introduce evidence as' to the business or trade customs in effect in Cook county at the time the lease was executed. The pertinent part of the lease contains the following definition: \u201cThe term \u2018gross sales,\u2019 for all purposes of this lease, shall mean the total price or charge paid or agreed to be paid on each sale made or service undertaken (other than beauty parlor services) at said demised premises or made or undertaken in connection with or as a part of the business conducted at said premises, during the month in question.\u201d Although this provision does not specify whether the amounts collected for the retailers\u2019 occupation tax should be included in gross sales for the purpose of computing the percentage rental, it does state specifically that the term gross sales, for all purposes of the lease, shall mean the total price or charge paid or agreed to be paid on each sale. The context of the lease thus appears clear and unambiguous; and where an instrument is clear and unambiguous, extraneous evidence is inadmissible to vary or augment its terms. The real test of the intention of the parties is the language of the lease. 51 C. J. S. Landlord and Tenant \u00a7 232 b (pp. 850-851). In the early case of Walker v. Tucker, 70 Ill. 527, the court said that \u201cin the construction of a contract, where the language is ambiguous, courts uniformly endeavor to ascertain the intention of the parties and to give effect to that intention; but where the language is unambiguous, although the parties may have failed to express their real intention, there is no room for construction, and the legal effect of the agreement must be enforced.\u201d More recently, the Supreme Court held in Domeyer v. O\u2019Connell, 364 Ill. 467, a case cited by plaintiff, that \u201cthe object of construction is to ascertain the intention of the parties. (Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill. 319.) That intention is to be determined from the language used in the instrument and not from any surmises that the parties intended certain conditions which they failed to express. Where there is no ambiguity in the language used, from that, and that alone, may the intention of the parties be gathered.\u201d And in the Decatur ' case the court observed: \u201cIf a written contract purports on its face to be a complete expression of the whole agreement, it is to be presumed that the parties introduced into it every material item and term, and in construing it the court will not add thereto another term about which the agreement is silent. * * * The object of construction is to ascertain the intention which the parties have expressed in the language of the contract, and, where there is no ambiguity in the terms used, the instrument itself is the only criterion of the intention of the parties.\u201d\nNeither of the parties cites any decisions where the precise question here presented was passed upon, but in the following cases the courts had occasion to consider and construe similar provisions and the identical term \u201cgross sales.\u201d In Levy v. Forma, 65 N. Y. S. (2d) 505, aff\u2019d 297 N. Y. 848, 78 N. E. (2d) 865, the court had before it for construction a lease providing for payment of a fixed annual and additional percentage rental, the latter to be computed on gross sales but with the express reservation that the phrase \u201cgross sales\u201d was, by the terms of the lease, not to include local sales taxes. Defendants there contended for the right to exclude, in the computation of gross sales, the amount of the federal excise tax on distilled spirits, but the court held that if they were permitted to do so they would \u201cin effect be deducting an item of expense to them from the actual sales. This would distort the meaning of the word \u2018gross\u2019 to something less than the totality which its use imports.\u201d In Gee Coal Co. v. Department of Finance of Illinois, 361 Ill. 293, it was held that a freight charge constituted part of a selling price requiring consideration in determining gross receipts, notwithstanding that such charge was billed separately. In another Illinois decision, Vause & Striegel v. McKibbin, Inc., 379 Ill. 169, the court held: \u201cThe mere fact that the retailer and the consumer may, by a particular form of billing, denominate the three cents additional charge in one instance a tax and in another a part of the selling price is not decisive. Manifestly, the State cannot be deprived of the tax upon the actual selling price irrespective of the form of invoice agreed upon by a retailer and the purchaser from him. Again, so far as the consumer is concerned, the selling price is $1.03, irrespective of the manner of bookkeeping.\u201d The closest approach to the precise question was presented to the Arizona court in State Tax Commission v. Que-bedeaux Chevrolet, 71 Ariz. 280, 226 P. (2d) 549. There the commission contended that the excise tax in question should be based on the full sales price, including the amount of the tax, whereas the retailer contended that the tax should be computed on the sales charge before the addition of the tax. As in the case before us, the price was stated separately, so much for the merchandise and an additional two per cent for the tax. In deciding the question the court held: \u201cIt likewise is true that the tax in question here is no different from rent, utilities, ad valorem taxes, or wages (which plaintiff likewise is not selling) in that it constitutes part of the over-all cost of operation which must be considered when plaintiff fixes the selling price of the tangible personal property which it does sell. Each item considered in setting the ultimate selling price, including the tax now in question, is paid by the consumer solely to get the goods. The tax therefore is part of the purchase price, and this price which is paid to get the goods which plaintiff does sell constitutes gross income on each transaction. The Act provides that the \u2018gross proceeds of sales or gross income from the business,\u2019 Sec. 73-1303 (d), is the base by which the 2% tax is measured. The tax therefore is a part of the selling price which forms the base upon which the amount of the tax is levied.\u201d (Emphasis supplied by the Arizona court.) In People\u2019s Drug Shop, Inc. v. Moysey, 317 Ill. App. 370, aff\u2019d 384 Ill. 283, the court said: \u201cIt is true that the merchant need not absorb the so-called Sales Tax and may pass it on to the consumer, but only as part of the sale price, not as a tax on the consumer. * * * The seller is not an agent of the State to collect the tax (Winter v. Barrett, 352 Ill. 441); he, himself must pay it. The tax is imposed on a class of vendors which includes plaintiff; it is not a consumer\u2019s tax.\u201d We regard these authorities as soundly reasoned and controlling.\nConversely, we do not think that evidence of business or trade customs is admissible to show the intention of the parties where the lease is unambiguous. Ambarann Corp. v. Old Ben Coal Corp., 395 Ill. 154; Garofalo Co., Inc. v. St. Mary\u2019s Packing Co., 339 Ill. App. 412. Accordingly, we hold that the authorities cited by plaintiff in support of its contention that the case should be remanded to adduce evidence touching upon the intention of the parties, either to construe the lease or to establish business or trade customs, are not in point.\nAs the remaining ground for reversal it is urged that defendant is not entitled to recover costs, attorneys\u2019 fees and expenses of this litigation. In the instant suit defendant sought to enforce plaintiff\u2019s covenant in the lease to pay the percentage rental in full on its 1951 sales, which was due January 15,1952, part of which still remains unpaid. The lease with respect to attorneys\u2019 fees provides: \u201cThe Lessee further agrees to pay and discharge all reasonable costs, attorneys\u2019 fees and expenses that shall be made and incurred by the Lessor in enforcing the covenants and agreements of this lease to be kept and performed by the Lessee,. and the parties to this lease agree that the covenants and agreements herein contained shall be binding upon, apply and inure to the respective successors and assigns.\u201d Defendant was obliged, in order to protect its interest, to file an answer to the complaint which, among other matters, prayed that a decree be entered finding that amounts collected by plaintiff from customers on account of the retailers\u2019 occupation tax should not be included in the gross sales of plaintiff for the purpose of computation of rent under the lease, and ordering repayment by defendant to plaintiff of a stated amount for rent paid under protest. Defendant, to obtain affirmative relief to collect the disputed rentals, filed a counterclaim. This is not solely, as plaintiff\u2019s counsel describe the present proceeding, a suit for the construction of the lease; instead, plaintiff prays judgment as well that it not be required to pay as rent certain sums which are claimed by defendant to be due it from plaintiff as rent, and that defendant refund to plaintiff a stated sum paid as rent. In the circumstances, defendant is entitled to reasonable attorneys\u2019 fees and costs of this litigation. Farmers\u2019 & Merchants\u2019 Nat. Bank v. Bailie, 138 Cal. App. 143, 32 P. (2d) 157.\nThe decree of the superior court was proper and is therefore affirmed.\nDecree affirmed.\nNiemeyer, J. and Burke, J., concur.", "type": "majority", "author": "Mr. Presiding Justice Friend" } ], "attorneys": [ "Cameron & Heath, of Chicago, for appellants; John R. Heath, and George R. Hooper, both of Chicago, of counsel.", "Isaac M. Mills, of Chicago, for appellee." ], "corrections": "", "head_matter": "Schoen-McAllister Company, Plaintiff-Appellant, v. Oak Park National Bank, as Trustee Under Trust Number 1333, Defendant-Appellee, and Unknown Owners of Beneficial Interests in Said Trust, Defendants.\nGen. No. 45,969.\nOpinion filed March 9, 1953.\nReleased for publication April 6, 1953.\nCameron & Heath, of Chicago, for appellants; John R. Heath, and George R. Hooper, both of Chicago, of counsel.\nIsaac M. Mills, of Chicago, for appellee." }, "file_name": "0500-01", "first_page_order": 562, "last_page_order": 571 }