Arlt v. GreatAmerican Federal Savings & Loan Ass'n

572 N.E.2d 1115, 213 Ill. App. 3d 584, 157 Ill. Dec. 651, 1991 Ill. App. LEXIS 730
CourtAppellate Court of Illinois
DecidedMay 6, 1991
Docket1-90-1346
StatusPublished
Cited by7 cases

This text of 572 N.E.2d 1115 (Arlt v. GreatAmerican Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arlt v. GreatAmerican Federal Savings & Loan Ass'n, 572 N.E.2d 1115, 213 Ill. App. 3d 584, 157 Ill. Dec. 651, 1991 Ill. App. LEXIS 730 (Ill. Ct. App. 1991).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiffs Mary and Frederick Arlt appeal from an order of the circuit court of Cook County which dismissed their verified amended complaint with prejudice pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). In defendant GreatAmerican Federal Savings & Loan Association’s (Great-American’s) motion to dismiss, it argued that the action was not timely filed and was barred by “other affirmative matter.” Plaintiffs allege on appeal that their action is not time barred and that questions of fact exist, thereby precluding dismissal of their case on the pleadings.

In 1961, Mary Arlt and Rose Anne Arlt opened a passbook savings account at Trident Savings & Loan Association, n/k/a Great-American. Mary and Rose Anne Arlt were issued a single passbook to use when making transactions on the account. The passbook reads, “Mary Arlt and Rose Anne Arlt (sister) Trustees for Frederick Arlt (brother).” Mary and Rose Anne made various deposits to the account from 1961 through 1965, but never made any withdrawals. Mary and Rose Anne were the only people authorized to make transactions on the account. Each transaction was to be recorded in the passbook.

On September 1, 1988, Mary, Rose Anne and Frederick Arlt presented the passbook to defendant and demanded payment of the amount held in the account, plus interest; defendant refused payment. On October 11, 1988, plaintiffs filed their original complaint. Defendant filed a motion to dismiss the complaint which the circuit court granted. Thereafter, plaintiffs successfully and timely filed their verified amended complaint along with Mary, Rose Anne and Frederick Arlts’ affidavits.

In plaintiffs’ verified amended complaint, they allege that they had a savings passbook account in which they made various deposits, that they were the only ones authorized to make transactions on the account, that the defendant agreed to repay the amount deposited in the account upon demand, that plaintiffs at no time withdrew money from this account, that plaintiffs made a demand for the money, and that the bank refused payment. The affidavits of Mary, Rose Anne, and Frederick Arlt reiterate the facts set out in the complaint.

Defendant filed a motion to dismiss pursuant to sections 2— 619(a)(5) and (a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2—619(a)(5), (a)(9)) alleging the action was time barred and that the action should be dismissed because of a presumption that, the debt was paid. Defendant made the same arguments in its motion to dismiss as it does in its appellate brief. The circuit court, again, entered an order dismissing the case. The record is devoid of any indication of the basis or reasons the circuit court dismissed plaintiffs’ complaint. Plaintiffs appeal this order.

When a complaint has been dismissed, the dismissal will be upheld upon any basis found in the record. (White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370.) This court should presume the dismissal was based upon one of the grounds properly presented. (Smith v. Board of Education of East St. Louis School District No. 189 (1977), 52 Ill. App. 3d 647, 367 N.E.2d 296.) The inquiry on appeal from an order granting a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure is limited to accepting as true all well-pled facts and reasonable inferences that can be drawn therefrom and to examining whether a cause of action was stated. (Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) Conclusions of law, however, are not admitted. Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210.

Initially, although not raised by the parties in their briefs, this court finds that plaintiffs stated a cause of action for breach of a written indebtedness which requires a plaintiff allege the existence of a contract between plaintiff and defendant, performance by plaintiff, breach by defendant and damages resulting from the breach. (Cf. Quake Construction, Inc. v. American Airlines, Inc. (1989), 181 Ill. App. 3d 908, 537 N.E.2d 863.) Plaintiffs properly allege that they had a contract with defendant, that they presented their passbook when transacting on the account, that upon presentment of their passbook defendant refused to pay plaintiffs the amount indicated in the passbook, and that the plaintiffs are damaged by not being able to retrieve their money. Thus, plaintiffs have properly alleged all the elements of a cause of action for breach of a written indebtedness, and in doing so, have stated a cause of action.

Defendant argues that the circuit court properly dismissed plaintiffs’ cause of action because it was not commenced within the 10-year time limit provided in section 13 — 206 of the Code of Civil Procedure. This section provides in pertinent part that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—206.) As section 13 — 206 states, the 10-year period begins to run after a cause of action accrues. Plaintiffs and defendant disagree as to when plaintiffs’ cause of action accrued. Plaintiffs and defendant do, however, agree that a savings account passbook is a form of indebtedness governed by the 10-year statute of limitations. (See Biehl v. H.N. Schuyler State Bank (1940), 305 Ill. App. 166, 26 N.E.2d 998 (abstract of opinion).) The question with which this court must concern itself, therefore, is when plaintiffs’ cause of action accrued.

Plaintiffs cite cases to support their position that a plaintiff’s right to maintain an action on a written indebtedness does not accrue until “a demand for payment has been made.” (Quigley v. W.N. Macqueen & Co. (1926), 321 Ill. 124, 151 N.E. 487; Emerson v. North American Transportation & Trading Co. (1922), 303 Ill. 282, 135 N.E. 497.) Defendant does not dispute this rule of law. Rather, defendant contends that the rule is qualified in that where there is no time fixed for performance, as with a savings account, “demand must be made within a reasonable time.” Quigley, 321 Ill. at 127, 151 N.E. at 489.

Defendant asserts that plaintiffs did not make their demand for the amount evidenced in the passbook within a reasonable time. This assertion, however, confuses the issues. The determination of whether demand was made within a reasonable time does not govern whether or not a cause of action is barred by the statute of limitations. The statute of limitations issue is governed solely by when demand was made and refused and when the action was filed. (See Ill. Rev. Stat. 1987, ch. 110, par.

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Bluebook (online)
572 N.E.2d 1115, 213 Ill. App. 3d 584, 157 Ill. Dec. 651, 1991 Ill. App. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arlt-v-greatamerican-federal-savings-loan-assn-illappct-1991.