Faber, Coe & Gregg, Inc. v. First National Bank

27 Citing cases

  1. Bank of Chicago-Garfield Ridge v. Park National Bank

    237 Ill. App. 3d 1085 (Ill. App. Ct. 1992)   Cited 27 times
    Providing that set-off is "available only where the debts are mutual, mature, and 'of such certain and ascertainable character as to be capable of being applied in compensation of each other' "and that a debt matures on the date its due

    There is no inherent right in equity to set off one demand against another; rather, equitable setoff was conceived as a limited remedy and is available only where the debts are mutual, mature, and "of such a certain and ascertainable character as to be capable of being applied in compensation of each other" ( Smith v. Billings (1896), 62 Ill. App. 77, 85) without the intervention of the court to estimate them. Faber, Coe Gregg, Inc. v. First National Bank (1969), 107 Ill. App.2d 204, 246 N.E.2d 96. Here, Garfield unilaterally withheld funds admittedly belonging to Park, in satisfaction for an alleged debt, including damages, which is the subject of a pending lawsuit.

  2. Kel-Keef Enterprises v. Quality Components

    316 Ill. App. 3d 998 (Ill. App. Ct. 2000)   Cited 47 times
    Holding that once the plaintiff expressly elected it wished to abandon its remedy of damages in favor of being excused from the contract, the plaintiffs election became final and irrevocable

    The doctrine of election of remedies "should be confined to cases where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res adjudicata can be applied." Faber, Coe Gregg, Inc., v. First National Bank of Chicago, 107 Ill. App.2d 204, 211, 246 N.E.2d 96, 100 (1969). Accord, International Association of Machinists Aerospace Workers v. Industrial Commission, 79 Ill.2d 544, 550-51, 404 N.E.2d 787, 789 (1980).

  3. Bonhiver v. State Bank of Clearing

    29 Ill. App. 3d 794 (Ill. App. Ct. 1975)   Cited 17 times
    Examining transferability of non-negotiable certificate of deposit

    The right of setoff arises at the time the depositor's indebtedness to the bank has matured. (See Elzy v. Morrison (1913), 180 Ill. App. 711, 715; Faber, Coe Gregg, Inc. v. First National Bank (1969), 107 Ill. App.2d 204, 208, 246 N.E.2d 96.) The fact that the certificates were issued on the same date the loan was made, and that all four instruments bore the same maturity dates, does not add any weight to the bank's argument that it possessed an inchoate lien on the deposits evidenced by the TCD. The loan of $150,000 to Kitzer, Sr., was not secured by the certificates. There is no evidence that the bank required Kitzer, Sr., to deposit the proceeds of the loan with the bank.

  4. Crown Life Ins. v. American Nat. Bk. Trust Co.

    35 F.3d 296 (7th Cir. 1994)   Cited 15 times
    Holding that a defendant waived his counterclaim for all time by failing to raise it in his answer

    An election of remedy occurs only when a party accepts the benefit of pursuing the initial remedy. Ransburg v. Haase, 224 Ill.App.3d 681, 167 Ill.Dec. 23, 28-29, 586 N.E.2d 1295, 1300-01 (3d Dist. 1992), appeal denied, 145 Ill.2d 644, 173 Ill. Dec. 13, 596 N.E.2d 637 (1992); Faber Coe Gregg, Inc. v. First National Bank of Chicago, 107 Ill.App.2d 204, 246 N.E.2d 96, 99-100 (1st Dist. 1969); 25 Am.Jur.2d, Election of Remedies, § 16 at 659 (1966). Here a forfeiture was never effected.

  5. Roberts v. Sears, Roebuck Co.

    617 F.2d 460 (7th Cir. 1980)   Cited 23 times
    Recognizing that, where court returned patent to the plaintiff "to insure that he would realize any future benefits," such remedy was best viewed as "cancellation, termination or forfeiture" of the prior agreement, rather than rescission

    However, in our earlier opinion, we provided for this possibility upon remand inasmuch as it does not amount to double compensation for the plaintiff. See Faber, Coe Gregg, Inc. v. First National Bank of Chicago, 107 Ill.App.2d 204, 211, 246 N.E.2d 96, 99-100 (1969); National Lock Co. v. Hogland, 101 F.2d 576, 587 (7th Cir. 1938). III

  6. Littlefield v. Wells Fargo Home Mortgage

    Case No. 01-1388 (C.D. Ill. Dec. 6, 2005)   Cited 75 times
    In Wells v. Littlefield, 59 Tex. 556, upon trial of right of property, the cause was remanded with directions to the court below to enter such judgment in favor of Wells as, under the law announced in the opinion, he was entitled to on the former trial, and to allow him such recovery as he had a right to in the state of the record below had the decision there been in his favor upon the trial of the right to the property in controversy.

    See e.g., Luther, 211 Ill.App. at 601; see also Lane v. Volunteer Cooperative Bank, 30 N.E.2d 821 (Mass. 1940). There is no inherent right in equity to set off one demand against another; rather, equitable setoff was conceived as a limited remedy, and is available only where the debts are mutual, mature, and "of such a certain and ascertainable character as to be capable of being applied in compensation of each other," Smith v. Billings, 62 Ill.App. 77, 85 (1896) without the intervention of the court to estimate them. Faber, Coe Gregg, Inc. v. First National Bank, 246 N.E.2d 96 (Ill.App. 1969). See also, Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18 (1995) (the right of setoff allows parties that owe each other money "to apply their mutual debts against each other, thereby avoiding `the absurdity of making A pay B when B owes A."), quoting Studley, 229 U.S. at 528); In re Murphy, 203 B.R. 972, 975 (Bankr.S.D.Ill. 1997) (citation omitted) ("[T]he right of setoff allows parties that owe mutual debts to each other to assert the amounts owed on these debts, subtract one from the other, and then pay only the balance."

  7. Marc Development, Inc. v. Wolin

    904 F. Supp. 777 (N.D. Ill. 1995)   Cited 9 times
    Purporting to apply the attorney litigation privilege, but relying on cases applying the conditional privilege

    But "equitable setoff was conceived as a limited remedy, and is available only where the debts are mutual, mature, and `of such a certain and ascertainable character as to be capable of being applied in compensation of each other' without the intervention of the court to estimate them." Bank of Chicago-Garfield Ridge v. Park Nat. Bank, 237 Ill.App.3d 1085, 179 Ill.Dec. 240, 244, 606 N.E.2d 72, 76 (1992) (quoting Faber, Coe Gregg v. First Nat. Bank of Chicago, 107 Ill.App.2d 204, 246 N.E.2d 96 (1969)). Since "debts arising at different times out of different circumstances are not mutual," the setoff here was not appropriate. Soo Line R. Co. v. Escanaba Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir. 1988).

  8. Levy v. Versar, Inc.

    882 F. Supp. 736 (N.D. Ill. 1995)   Cited 2 times

    Illinois law limits the doctrine of election of remedies to "its true remedial purpose as a doctrine of substance; and . . . should be confined to cases where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res judicata can be applied." Faber, Coe Gregg, Inc. v. First Nat'l Bank of Chicago, 107 Ill. App.2d 204, 246 N.E.2d 96, 100 (1969) (citations omitted). Thus, seeking damages for future response costs under Illinois law for negligent representation will be barred if it threatens double compensation.

  9. In re Clark Retail Enterprises, Inc.

    308 B.R. 869 (Bankr. N.D. Ill. 2004)   Cited 13 times
    Finding a single purchase agreement for eighty-one gas stations was severable into distinct agreements for each property when the agreement priced the properties separately; each property had its own due diligence information; the agreement contemplated separate warranties, inspections, and closing for each property; and environmental conditions and remediation obligations varied among the properties

            Illinois courts have long acknowledged a right to setoff. In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 955 (7th Cir.2003) (noting Illinois courts' recognition of a common law right of setoff); Harber Bros., 37 N.E. at 679; Faber, Coe & Gregg, Inc. v. First Nat'l Bank of Chi., 107 Ill.App.2d 204, 246 N.E.2d 96, 99 (1969); Eck v. Penn. R.R. Co., No. 34567, 1931 WL 2976, at *4 (Ill.App.Ct. Mar. 1931) ("[S]etoff ... [is] entirely the subject of statutory regulations."); Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., No. 30652, 1926 WL 3795, at *2 (Ill.App.Ct. Mar. 1926); Hammans v. Powell Myers Lumber Co., No. 25618, 1920 WL 1290, at *1 (Ill.App.Ct. Nov. 1920); Kingman v. Draper, 14 Ill.App. 577, 1884 WL 10058, at *1 (Ill.App.Ct. Feb. 1884). In addition, Illinois law recognizes that a party can counterclaim based on setoff.

  10. In re Clark Retail Enterprises, Inc.

    Bankr. Case Nos. 02 B 40045, 02 B 40046, Adv. Case No. 03 A. 04393 (Bankr. N.D. Ill. Apr. 29, 2004)

    Illinois courts have long acknowledged a right to setoff. In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 955 (7th Cir. 2003) (noting Illinois courts' recognition of a common law right of setoff); Harber Bros., 37 N.E. at 679; Faber, Coe Gregg, Inc. v. First Nat'l Bank of Chi., 246 N.E.2d 96, 99 (Ill.App.Ct. 1969); Eck v. Penn. R.R. Co., No. 34567, 1931 WL 2976, at *4 (Ill.App.Ct. Mar. 1931) ("[S]etoff . . . [is] entirely the subject of statutory regulations."); Sterling-Midland Coal Co. v. Great Lakes Coal Coke Co., No. 30652, 1926 WL 3795, at *2 (Ill.App.Ct. Mar. 1926); Hammans v. Powell Myers Lumber Co., No. 25618, 1920 WL 1290, at *1 (Ill.App.Ct. Nov. 1920); Kingman v. Draper, 1884 WL 10058, at *1 (Ill.App.Ct. Feb. 1884).