¶1dissenting: I disagree with the majority opinion for the reasons set forth in my dissent in the previous appeal of this case, as reported in 308 Ill. App. 337.
¶2In my opinion there are no novel facts in the present case which warrant a departure from the general rule that attorneys’ fees and expenses of litigation cannot be recovered as damages by a plaintiff who has been forced into litigation with a defendant by reason of defendant’s wrongful conduct, where such plaintiff has been successful in such litigation. The majority opinion indicates that there is no case to be found in point and yet recovery was denied in the following cases in which the plaintiffs, as in the case at bar, were forced into litigation by the defendants in order to protect some property right. (Toop v. Palmer, 108 Neb. 850, 189 N. W. 394; Stickney v. Goward, 161 Minn. 457, 201 N. W. 630; Leslie v. Carter, 268 Mo. 420, 187 S. W. 1196; Choukas v. Severyns, 3 Wash. (2d) 71, 99 P. (2d) 942; Perlus v. Silver, 71 Wash. 338, 128 Pac. 661.) In none of these cases did the court consider the fact that plaintiff was forced into litigation with defendant in order to protect his property rights as against such defendant, as a sufficient reason for establishing a new rule of damages.
¶3The majority opinion is based upon the premise that because recovery of such damages is allowed in collateral litigation, it should also be allowed where the litigation is between the same parties. The number of cases in which a defendant by his wrongful conduct forces litigation upon a plaintiff with a third party is certainly infinitely fewer than cases where the litigation is between the same parties. Where recovery is limited to cases involving litigation with other parties, the rule permitting recovery is not difficult to administer. However, if recovery of such damages is to be permitted even in the class of cases as limited in the majority opinion to instances where “legal action is necessarily required on the part of a plaintiff to protect certain property rights as the result of wrongful or malicious conduct of a defendant,” it is apparent that an entirely new type of claim will hereafter be asserted in a vast number of cases, either in the original action between the parties or in a later separate suit, and in each such case the court will be required to determine whether the circumstances justify the assessment of attorneys’ fees and expenses in addition to the costs of suit.
¶4In the instant case the attorneys’ fees and expenses were incurred by plaintiffs in asserting their claim in chancery that defendant was a constructive trustee in their behalf of a parcel of property. If recovery is to be permitted in this case it should be allowed at least in all constructive trust cases, and there would be no logical reason for restricting recovery to this class of cases alone. The vista thus opened up of new litigation may be appealing to some members of the bar, but I do not think that the public interest would benefit by rewarding successful plaintiffs in this manner. The question might well be asked, if recovery is to be allowed to the plaintiffs in such cases, why should it be denied to defendants who are required to defend their property rights against groundless claims either wrongfully or maliciously asserted by plaintiffs. I am still of the opinion that a sound public policy requires both the successful plaintiffs and defendants in cases of this character to pay their own attorneys’ fees and expenses of litigation.
¶5The additional cases cited in the majority opinion on the question of res adjudicaba fail to convince me that, if plaintiffs were legally entitled to recover their attorneys’ fees and expenses as damages, they are not now barred by reason of their failure to assert this claim in the original chancery proceedings. The claim for damages is clearly based upon the wrongful conduct of defendant in refusing to convey title to plaintiffs, and the majority admit in their opinion that this claim could have been asserted in the original proceedings. There was only one breach of duty on the part of the defendant, and plaintiffs were entitled to all damages flowing from that single breach, including attorneys’ fees and expenses of litigation if these were to be considered as a part of the damages. I do not understand why the claim for these particular damages should constitute a distinct and separate cause of action which the plaintiffs at their election can assert either in the original proceeding or in a subsequent suit as provided in the majority opinion. This same question was carefully considered by the courts in the cases of Leslie v. Carter, supra; and Van Horne v. Treadwell, 164 Cal. 620, 130 Pac. 5, and in both cases recovery was denied in the subsequent suit on the ground that the claim for such damages, if such a claim existed, should have been asserted in the prior proceeding. The principle laid down in these cases furnishes a further reason for denying recovery to the plaintiffs in this case.