Dauchy Iron Works v. McKim Gasket & Manufacturing Co.

Appellate Court of Illinois

Dauchy Iron Works v. McKim Gasket & Manufacturing Co.

85 Ill. App. 584, 1899 Ill. App. LEXIS 931

CourtAppellate Court of Illinois

DecidedNovember 16, 1899

StatusPublished

Cited by1 cases

This text of 85 Ill. App. 584 (Dauchy Iron Works v. McKim Gasket & Manufacturing Co.) 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.

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Dauchy Iron Works v. McKim Gasket & Manufacturing Co., 85 Ill. App. 584, 1899 Ill. App. LEXIS 931 (Ill. Ct. App. 1899).

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Opinion

Mr. Justice Wiitdes

delivered the opinion of the court.

From the statement of facts preceding this opinion it appears that the tenancy of appellee was, at most, a monthly tenancy at $40 per month as rent, without any other agreement between it and appellant as to when .the rent was payable. The first rent was paid on September 1, 1896, which was for a part of the month of July, and for the months of August and September, 1896. Appellee went into possession on the 20th of July, 1896. Bent for the month of October, 1896, was paid on October 5, 1896. The written lease which was prepared by appellant and left with the officers of appellee, was not signed, nor does it appear that any of its terms were assented to by appellee. Under such circumstances, and in view of the manner in which the rent was paid, it can not be said that any time was agreed upon as to when the rent was due, except that it was to be paid monthly.

When there is no agreement that monthly rent shall be paid in advance, it is not due until the end of the month. Wood’s Landlord & Tenant, Sec. 450, Taylor’s Landlord & & Tenant, Vol. 1, Sec. 391; Dixon v. Nicolls, 39 Ill. 372.

The rent for the whole of the month of October having been paid, there was no rent due to appellant on the 2d day of ¡November, 1896, when it distrained. It follows that the judgment in the distress case was correct.

The evidence shows no right of appellant to retain the property replevied except by virtue of the distress. The right of distress failing, for the reason that no rent was due, it follows that the judgment in the replevin suit was also correct.

If we are correct in the foregoing conclusions, it is unnecessary for us to consider in this opinion, and we do not therefore refer to, the several contentions and authorities cited by appellant’s counsel.

The judgments of "the Superior Court are therefore affirmed.

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Mr. Justice Wiitdes

delivered the opinion of the court.

From the statement of facts preceding this opinion it appears that the tenancy of appellee was, at most, a monthly tenancy at $40 per month as rent, without any other agreement between it and appellant as to when .the rent was payable. The first rent was paid on September 1, 1896, which was for a part of the month of July, and for the months of August and September, 1896. Appellee went into possession on the 20th of July, 1896. Bent for the month of October, 1896, was paid on October 5, 1896. The written lease which was prepared by appellant and left with the officers of appellee, was not signed, nor does it appear that any of its terms were assented to by appellee. Under such circumstances, and in view of the manner in which the rent was paid, it can not be said that any time was agreed upon as to when the rent was due, except that it was to be paid monthly.

When there is no agreement that monthly rent shall be paid in advance, it is not due until the end of the month. Wood’s Landlord & Tenant, Sec. 450, Taylor’s Landlord & & Tenant, Vol. 1, Sec. 391; Dixon v. Nicolls, 39 Ill. 372.

The rent for the whole of the month of October having been paid, there was no rent due to appellant on the 2d day of ¡November, 1896, when it distrained. It follows that the judgment in the distress case was correct.

The evidence shows no right of appellant to retain the property replevied except by virtue of the distress. The right of distress failing, for the reason that no rent was due, it follows that the judgment in the replevin suit was also correct.

If we are correct in the foregoing conclusions, it is unnecessary for us to consider in this opinion, and we do not therefore refer to, the several contentions and authorities cited by appellant’s counsel.

The judgments of "the Superior Court are therefore affirmed.

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85 Ill. App. 584, 1899 Ill. App. LEXIS 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dauchy-iron-works-v-mckim-gasket-manufacturing-co-illappct-1899.

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