Mr. Justice Shops
delivered the opinion of the Court:
The first point made by counsel is, that the demurrer was improperly sustained. Every bill must contain sufficient matters of fact, per se, to maintain the case, so that the same may be put in issue by the answer and established by proofs. (Harrison et al. v. Nixon, 9 Pet. 502; Boone v. Chiles, 10 id. 177.) Appellant, by his bill, asks that appellee be required to unconditionally convey to him a half interest in the leasehold ■alleged to have been purchased of Cooper. Every claim to equitable relief necessarily rests upon an existing right, not only in respect of the matter demanded to be done, but also to immediately demand it of the defendant. If, for any reason founded on the substance of the case, as stated in the bill, admitting it to be true, the complainant is not entitled to the relief sought, the defendant may properly demur. Story’s Eq. PL see. 526.
A very brief analysis of the bill, keeping in view that the intendments are against the pleader, will show that the bill wholly fails to state a case entitling him to the relief prayed, or to any other relief. By reference to the resume of the bill heretofore given, it will be seen that only a single date is given to any of these transactions, that being March 1, 1889, when it is alleged the original contract between these parties was made. It is alleged they procured an option from Cooper to purchase his lease; but when it was procured, for how long a time the option continued, or when it expired, are left wholly to conjecture. It is alleged, also, that appellee purchased of Cooper in his own name; but as to when,—whether during the lifetime of the option or after its termination, when all 'rights thereunder had ceased,—there is no information afforded by any allegation of the bill. Eleven months had elapsed, substantially, between the making of the alleged contract by the appellant with appellee, and the filing of this bill, and for aught that is stated in the bill, all right under the option given by Cooper had ceased many months before the purchase by appellee. Again, it would seem from the allegations of the bill that the original agreement between these parties contemplated a loan, secured by mortgage of the estate, to pay the purchase price of the leasehold estate, as well as to erect buildings thereon. The allegations of the bill show that the parties were negotiating “for a loan of money sufficient to erect a building," simply. How the large sum of money required to pay for the leasehold estate was to be raised, or howl it was in fact raised, if at all, is not shown. Moreover, if it' be conceded that the lease was to be paid for out of a loan raised on the leasehold property, and that it was the duty of', the appellee-under the alleged trust to make the same for the-joint benefit of himself and appellant, during the continuance of the option, there is not the slightest intimation that he did,; or could by the exercise of due diligence and skill make, such a loan, and thereby perform the alleged trust.
Nothing was paid Cooper for the alleged option, nor was . there an assumption by the parties of the liability of Cooper under the covenants of said lease. Appellant did nothing beyond employing an architect to prepare plans of a building, and neither by his bill, nor otherwise, offers to do anything. No tender is made in the bill, or otherwise, of any part of the purchase price of the leasehold estate, and there is no statement that he ever offered to contribute anything toward the-purchase. If appellee was compelled to advance the entire cost of the purchase from Cooper before appellant would be equitably entitled to the relief prayed for, he must reimburse appellee a pro rata share of the money expended, even though the purchase was under the option, and this, being a condition to his right to equitable relief, must be offered in his bill.! On the other hand, if it be assumed, as may be done consistently with the material allegations of the bill, that the “specified time” for which the option had been given had elapsed’ and the joint enterprise been abandoned, and appellee purchased the lease in good faith for himself, there is nothing alleged that would charge him with a trust in favor of appellant, or render him a trustee ex malifieio in respect of said, estate. We are of opinion that the demurrer was properly sustained.
It is next insisted that the court erred in overruling appellant’s motion for leave to amend. It may be conceded that the showing was sufficient to excuse appellant for not having' made his amendment under the leave given, and for not ap- ■ plying for additional leave at an earlier date. The application was then addressed to the sound discretion of the chancellor, to be exercised for the furtherance of justice. It appears, however, from the certificate of the judge, that he denied the leave upon the ground that the order sustaining the demurrer and granting leave to amend was a final order, which the court at a subsequent term could not modify, and held, that complainant having failed to amend his bill according to said order, the ■court was without jurisdiction or power to then grant said leave. We concur with the Appellate Court that the chancellor was in error in so holding. The case was still pending in the Superior Court. (Knapp v. Marshall, 26 Ill. 63.) The order-entered was interlocutory, and the court had power and jurisdiction to make such further order in the cause as justice might require. Hayes v. Caldwell, 5 Gilm. 33; Cage v. Rohrbach, 56 Ill. 262; March v. Meyers, 85 id. 177; Fort Dearborn Lodge v. Klein, 115 id. 177.
It is insisted, with great earnestness, that the Superior Court having placed its refusal to grant leave to amend upon erroneous grounds, and not having considered whether its discretion should be exercised to permit the amendment, the decree must be reversed and the cause remanded, to the end that the chancellor may exercise such discretion in passing upon the granting of leave to amend, and that therefore the Appellate Court erred in exercising a discretion committed to the ■chancellor alone, and in refusing to reverse and remand. This is manifestly erroneous. The entire showing made to the chancellor is in the record, and if, for any reason, the discretion should not have been exercised or the leave should have been denied, the action of the Superior Court in refusing the leave was properly affirmed. It is of the judgment of the court appellant is permitted to complain, and not of the grounds or reasons upon which the court founded its decision. In chaneery, amendments are allowed, generally, with great liberality in furtherance of justice, and at any stage of the proceeding. However, in respect of sworn bills greater caution is exercised. 1 Daniell’s Ch. Pr. 402, note 1.
It was said by this court in Gregg v. Brower, 67 Ill. 529, that when the object of the amendment is to let in new facts, there is greater reluctance to allow the amendment when it depends upon extrinsic proof than when it rests upon documentary evidence, and if the fact was known to the complainant at the time of- filing his bill, such amendment will not be-allowed unless some excuse is given for the omission,—citing Calloway v. Dobson, 1 Brock. 119; Whitemarsh v. Campbell, 2 Paige, 67; Punate v. Hubbell, 1 Hill. Ch. 217; Coal Co. v. Dyatt, 2 Edw. Ch. 1150. In the subsequent case of Jones v. Kennicott, 83 Ill.
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Mr. Justice Shops
delivered the opinion of the Court:
The first point made by counsel is, that the demurrer was improperly sustained. Every bill must contain sufficient matters of fact, per se, to maintain the case, so that the same may be put in issue by the answer and established by proofs. (Harrison et al. v. Nixon, 9 Pet. 502; Boone v. Chiles, 10 id. 177.) Appellant, by his bill, asks that appellee be required to unconditionally convey to him a half interest in the leasehold ■alleged to have been purchased of Cooper. Every claim to equitable relief necessarily rests upon an existing right, not only in respect of the matter demanded to be done, but also to immediately demand it of the defendant. If, for any reason founded on the substance of the case, as stated in the bill, admitting it to be true, the complainant is not entitled to the relief sought, the defendant may properly demur. Story’s Eq. PL see. 526.
A very brief analysis of the bill, keeping in view that the intendments are against the pleader, will show that the bill wholly fails to state a case entitling him to the relief prayed, or to any other relief. By reference to the resume of the bill heretofore given, it will be seen that only a single date is given to any of these transactions, that being March 1, 1889, when it is alleged the original contract between these parties was made. It is alleged they procured an option from Cooper to purchase his lease; but when it was procured, for how long a time the option continued, or when it expired, are left wholly to conjecture. It is alleged, also, that appellee purchased of Cooper in his own name; but as to when,—whether during the lifetime of the option or after its termination, when all 'rights thereunder had ceased,—there is no information afforded by any allegation of the bill. Eleven months had elapsed, substantially, between the making of the alleged contract by the appellant with appellee, and the filing of this bill, and for aught that is stated in the bill, all right under the option given by Cooper had ceased many months before the purchase by appellee. Again, it would seem from the allegations of the bill that the original agreement between these parties contemplated a loan, secured by mortgage of the estate, to pay the purchase price of the leasehold estate, as well as to erect buildings thereon. The allegations of the bill show that the parties were negotiating “for a loan of money sufficient to erect a building," simply. How the large sum of money required to pay for the leasehold estate was to be raised, or howl it was in fact raised, if at all, is not shown. Moreover, if it' be conceded that the lease was to be paid for out of a loan raised on the leasehold property, and that it was the duty of', the appellee-under the alleged trust to make the same for the-joint benefit of himself and appellant, during the continuance of the option, there is not the slightest intimation that he did,; or could by the exercise of due diligence and skill make, such a loan, and thereby perform the alleged trust.
Nothing was paid Cooper for the alleged option, nor was . there an assumption by the parties of the liability of Cooper under the covenants of said lease. Appellant did nothing beyond employing an architect to prepare plans of a building, and neither by his bill, nor otherwise, offers to do anything. No tender is made in the bill, or otherwise, of any part of the purchase price of the leasehold estate, and there is no statement that he ever offered to contribute anything toward the-purchase. If appellee was compelled to advance the entire cost of the purchase from Cooper before appellant would be equitably entitled to the relief prayed for, he must reimburse appellee a pro rata share of the money expended, even though the purchase was under the option, and this, being a condition to his right to equitable relief, must be offered in his bill.! On the other hand, if it be assumed, as may be done consistently with the material allegations of the bill, that the “specified time” for which the option had been given had elapsed’ and the joint enterprise been abandoned, and appellee purchased the lease in good faith for himself, there is nothing alleged that would charge him with a trust in favor of appellant, or render him a trustee ex malifieio in respect of said, estate. We are of opinion that the demurrer was properly sustained.
It is next insisted that the court erred in overruling appellant’s motion for leave to amend. It may be conceded that the showing was sufficient to excuse appellant for not having' made his amendment under the leave given, and for not ap- ■ plying for additional leave at an earlier date. The application was then addressed to the sound discretion of the chancellor, to be exercised for the furtherance of justice. It appears, however, from the certificate of the judge, that he denied the leave upon the ground that the order sustaining the demurrer and granting leave to amend was a final order, which the court at a subsequent term could not modify, and held, that complainant having failed to amend his bill according to said order, the ■court was without jurisdiction or power to then grant said leave. We concur with the Appellate Court that the chancellor was in error in so holding. The case was still pending in the Superior Court. (Knapp v. Marshall, 26 Ill. 63.) The order-entered was interlocutory, and the court had power and jurisdiction to make such further order in the cause as justice might require. Hayes v. Caldwell, 5 Gilm. 33; Cage v. Rohrbach, 56 Ill. 262; March v. Meyers, 85 id. 177; Fort Dearborn Lodge v. Klein, 115 id. 177.
It is insisted, with great earnestness, that the Superior Court having placed its refusal to grant leave to amend upon erroneous grounds, and not having considered whether its discretion should be exercised to permit the amendment, the decree must be reversed and the cause remanded, to the end that the chancellor may exercise such discretion in passing upon the granting of leave to amend, and that therefore the Appellate Court erred in exercising a discretion committed to the ■chancellor alone, and in refusing to reverse and remand. This is manifestly erroneous. The entire showing made to the chancellor is in the record, and if, for any reason, the discretion should not have been exercised or the leave should have been denied, the action of the Superior Court in refusing the leave was properly affirmed. It is of the judgment of the court appellant is permitted to complain, and not of the grounds or reasons upon which the court founded its decision. In chaneery, amendments are allowed, generally, with great liberality in furtherance of justice, and at any stage of the proceeding. However, in respect of sworn bills greater caution is exercised. 1 Daniell’s Ch. Pr. 402, note 1.
It was said by this court in Gregg v. Brower, 67 Ill. 529, that when the object of the amendment is to let in new facts, there is greater reluctance to allow the amendment when it depends upon extrinsic proof than when it rests upon documentary evidence, and if the fact was known to the complainant at the time of- filing his bill, such amendment will not be-allowed unless some excuse is given for the omission,—citing Calloway v. Dobson, 1 Brock. 119; Whitemarsh v. Campbell, 2 Paige, 67; Punate v. Hubbell, 1 Hill. Ch. 217; Coal Co. v. Dyatt, 2 Edw. Ch. 1150. In the subsequent case of Jones v. Kennicott, 83 Ill. 484, which was a bill for ne exeat, and required to be verified by the oath of the party, this court, in passing upon the right of complainant to amend his bill after-demurrer sustained, said: “The party asking leave to amend ■ should present and submit in writing the amendment proposed to be made, supported by an affidavit of its truth, and some-explanation of the reason why the matter proposed to be-added was not originally inserted.”
■The bill in this case prayed for the issuance of a writ of injunction restraining appellee from mortgaging, encumbering- or otherwise disposing of the leasehold estate mentioned, and was properly verified by the affidavit of complainant. It was-sworn to, that it might be used in procuring an injunction, as-well as evidence upon subsequent motion to dissolve the same. It would have been entirely competent for complainant, at any time, to have moved for a preliminary injunction. That he-did not do so does not affect the nature or character of his bill.
The motion for leave to amend was not accompanied by any amendment. No suggestion, in writing or otherwise, was made-of the nature or character of the amendment proposed, or affidavit showing that any additional material matter existed or could be alleged, or accounting for its omission. Under the rule relating to amendments of sworn bills, the motion was properly denied. But if it be conceded, as contended, that the bill is to be treated as an unsworn bill, the appellant is in no better position. The rule undoubtedly is, that if the bill is not required by law to be sworn to, and the fact of it being a sworn bill performs no office or effects no change from what it would be as an unsworn bill, the verification of it by oath of the party will be disregarded, (Gordon v. Reynolds, 114 Ill. 132, Downey v. O’Donnell et al. 92 id. 561,) and amendments allowed, as if it was not sworn to. The usual practice, upon sustaining a demurrer to a bill of this character, is to allow amendments as a matter of course, upon such terms as the court may deem proper, (Rev. Stat. chap. 22, sec. 37,) and within such reasonable time as may be fixed by the court, as was done in this case. Here, the appellant failed to make his amendment within the time prescribed, and the dismissal of the bill would follow as a matter of course. The application was for the affirmative exercise of the discretion‘of the chancellor in appellant’s behalf. He sufficiently accounted, as he must, for his want of diligence, and so far met the demands upon him. But more was required. The discretion could be exercised only in furtherance of justice. Its exercise was warranted only when necessary, or apparently necessary, to prevent the consummation of wrong and promote and further justice.. Parties litigant have a right to insist that litigation shall not be unnecessarily prolonged, and unless there was some meritorious reason for further delay, the defendant might rightfully demand the dismissal of the bill, and thus end vexatious litigation.
As before indicated, appellant wholly failed to show, not only what amendment he desired to make, but that any amendment could in fact be made to the bill which would obviate the objections to it in matter of substance. It would seem too plain for argument, that before a chancellor could say an amendment should he allowed as in furtherance of justice, he must be apprised of the nature of the amendment to be made. For aught that appeared, the amendments proposed may have been of the most frivolous character, calculated to harass and annoy the defendant by prolonging the litigation and increasing the expense. In such a case no one would contend that the amendment should be allowed. There is no hardship in requiring a party who is in default, and invoking the discretion of the court, to present with his application for leave the amendments proposed to be made, or •otherwise apprising the court of what they are, so that the court may intelligently determine the propriety of allowing or •disallowing them. There was nothing here shown upon which the court could properly exercise a discretion to allow amendments to the bill, and the order of. the court was therefore proper. Upon the disallowance of the motion for leave to amend, the order of dismissal properly followed, and its affirmance by the Appellate Court was right.
Other errors are assigned, but all of the points made requiring consideration are met by the foregoing.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.