Field v. Herrick

14 Ill. App. 181, 1883 Ill. App. LEXIS 164

• Court: Appellate Court of Illinois
• Decided: March 5, 1884
• Status: Published

Opinion

McAllister, P. J.

The authorities all agree that there is a certain obligation on the part of the lessor, implied by law, from the contract of letting real estate fora consideration paid or to be paid as rent by the lessee; but as to the nature and extent of that obligation, there is a clear divergence. In Gardner v. Keteltas, 3 Hill (N. Y.), 330, it was held that such implied obligation or undertaking did not amount to an agreement to put the lessee into actual possession; that there was no warranty implied against the acts of strangers; and that therefore, if the lessee be kept out by a former tenant ' whose term had expired, so that he was holding wrongfully, such lessee being entitled to do so, must resort to his summary remedy by forcible detainer, and get the party so holding over out of possession and himself in, and has no remedy against his lessor.

In Gazzolo v„ Chambers, 73 Ill. 75, our Supreme Court has expressly affirmed the doctrine of that case. In the former, the opinion was delivered by Kelson, C. J., and he says that he has found no decision, nor has any been referred to, going the length claimed by the plaintiff, viz., that the lessor was bound to put the lessee in actual possession of the demised premises. In the latter the opinion was delivered by Mr. Justice Scott, and he says: “The implied covenant for quiet enjoyment has never, so far as we know, been construed to embrace an obligation on the part of the lessor to place the lessee in possession of the premises. If he is kept out of possession by any act of the landlord, or by one holding a paramount title, no doubt the lessee may have an action.” The case of Gardner v. Keteltas, supra, was decided a dozen years after the case of Coe v. Clay, 5 Bing. 440; 15 E. C. L. 660, holding a different doctrine; and the very learned and able judge who delivered the opinion in the former case, did not find it, nor was his attention called to it by either of the distinguished counsel engaged in the case. In Coe v. Clay, the defendant had agreed to let to plaintiff certain premises, and the action was for letting him into possession, which a preceding occupier having wrongfully refused to quit, the defendant was unable to do. It was argued that the lessee should have proceeded to get the preceding wrongful occupier out. The court held that, “ he who lets, agrees to give possession, and not merely a chance of a law suit.” That rule was followed in Jenks v. Edwards, 11 Exch. 775; See, also, Wood v. Hubbell, 5 Barb. Sup. Ct. 601; S. C. 10 N. Y. 479; Hay v. Cumberland, 25 Barb. 594; Trull v. Granger, 8 N. Y. 115; Hussier v. Zallee, 24 Mo. 13; Hughs v. Hood, 50 Mo. 350; Andrews v. Woodcock, 14 Iowa; Manville v. Gay, 1 Wis. 250; Eldred v. Leahy, 31 Wis. 546. In Mason v. Seitz, 36 Ind. 516, the court says: “The placing of the defendants in possession and enjoyment of the real and personal property described in the contract, was a condition precedent to the right of the plaintiff to recover rent.” In Posten v. Jones, 2 Iredell’s Eq. 350, the lessee was kept out by a paramount title. Puffin, Ch. J., said: “ In every lease of land, the lessor is so far bound by implication for the title and enjoyment by the lessee, that his right to the rent is dependent thereon. * * The rule is founded on that principle, so consonant to natural justice, that one should not be compelled to pay for that which, though contracted for, he never got.”

In the case at bar, the defendants, who are here sued for rent, contracted for the possession of the demised premises, but which, through no fault on their part, they never got, because Cox, a former occupier, was in possession, and refused to quit; according to the English and several American cases above cited, this action for rent could not be maintained, even if Cox’s possession was wrongful because, as it is held, the plaintiffs as lessors, were under an obligation, implied by lawr, to give the defendants, the lessees, possession, instead of the chance of a law suit; and the performance of that obligation would be a condition precedent to their right to the rent.

But according to the other class of cases, such as Gardner v. Keteltas, 3 Hill, and Gazzolo v. Chambers, 73 Ill., supra, if the possession of Cox was rightful as between him and plaintiffs, so that defendants could not have maintained an action for forcible detainer or ejectment against him, the plaintiffs would, in such case, be barred of a recovery of the rent. Was it rightful? Cox took possession August 4th, and held under a written lease from plaintiffs, which expired December 31, 1877; he then held over, up to and months after, March 1, 1878, the time when defendants’ term commenced. The evidence clearly shows that Cox so held over, after the expiration of his written lease, with the assent of the plaintiffs; that his possession was lawful; that he was a tenant of plaintiffs, and not a trespasser, under any aspect of the case; and the plaintiffs were in no position, on the 1st day of March, 1878, to legally require Cox to quit, even if they had not made the lease in question to defendants. What was the relation between plaintiffs and Cox, at the time, in respect to his possession? He had held under a written lease running from Aug. 4 to Dec. 31, 1877, and held over with the implied assent of plaintiffs, his lessors. How, it is a general rule, that where there is a lease for a year, and by the assent of both parties the tenant continues in possession afterward, then, in the absence of any hew agreement, the law will imply a tacit renovation of the former one.’ Right v. Darby, 1 Durnf. & East, 159. But the former lease, under which Cox held, was for a period less than a year. In Pickett v. Ritter, 16 Ill. 96, the rule in such case is stated thus: “ Where the lease is for any period less than a year, the holding will be construed as being for another term of the same length of time; and in all cases, as upon the same terms, as to the amount of rent and times of payment, unless there be some act of one or both the parties to rebut such an implication.” McKinney v. Peck, 28 Ill. 174; Clapp v. Noble, 84 Ill. 62.

The renewal of the former lease between plaintiffs and Cox would have given the latter a term extending over two months beyond March 1, 1878. But if acts were shown which would suffice to rebut the implication of such renewal, but which fell short of a new agreement, then Cox would be in the rightful possession, under a tenancy subject to be terminated by thirty days notice in writing as provided by our statute. Then, if no such notice had been given before said 1st day of March, he was not subject to ouster by any legal proceedings.

There is still another aspect to the case. Cox testified, and was strongly corroborated by circumstances, that in December, 1877, before the expiration of his written lease, he made ail agreement with plaintiffs, through their authorized agent, Myers, tor a lease of the premises for at least a year from January 1, 1878, at a specified rent to be paid monthly. That agreement may have been within the Statute of Frauds; if not in writing, it clearly was. But even if it were, if Cox was holding under it, such agreement could not be wholly disregarded on the trial of this case. The agreement would be void as to the duration of time, but would govern as to the amount and time of payment of rent, and as to notice to quit. Doe, ex dem. Riggie, v. Bell, 5 Durnf. & East, 471; Laughran v. Smith, 75 N. Y. 205.

Under the decisions in this State, the agreement providing for the payment of rent monthly, Cox became tenant from month to month, and was entitled to the thirty days notice in writing in order to terminate such tenancy. Warner v. Hale, 65 Ill. 395; Brownell v. Welch, 91 Ill. 523.

The evidence affirmatively shows, and there is none to the contrary, that the plaintiffs gave Cox no notice of the termination of his tenancy, and he continued thus in possession until long after March 1, 1878, when defendants should have had possession. In respect to said agreement, the court, at the instance of plaintiffs, gave to the jury this instruction: “ Even if the jury believe that E. B. Myers agreed in December, 1877, to give Cox a lease for a new term to begin after January 1, 1878, such agreement was void, not binding on the plaintiffs, and gave no right to Cox to remain in possession, and is no defense in this action, unless after the 1st day of January, 1878, the plaintiffs accepted rent under said agreement.”

The evidence clearly shows, and is undisputed, that Myers had authority from the plaintiffs to make such an agreement, and the instruction contains no hypothesis as respects that point. Heither does it contain any hypothesis as to whether the agreement was in writing or not, by its terms to be performed within a year from the time of making. We are, therefore, unable to determine upon what ground the court assumed to tell the jury, as matter of law, that the agreement was void, not binding on the plaintiffs, and gave no right to Cox to remain in possession, and was no defense in the action. If the court so assumed because the agreement was within the Statute of Frauds, the conclusion was, as we have endeavored to show, and as the authorities do show, wrong, and there was a clear misdirection of the jury. If within the Statute of Frauds, Cox’s possession under it would be rightful, and he would be tenant from month to month until the plaintiffs terminated that tenancy by the requisite notice. About February 1, 1878, the plaintiffs received from Cox two hundred dollars upon rent accruing after January 1, 1878. There is no doubt but Oox paid it under that agreement, while the plaintiffs undertook to make another application of it. So they sought to obviate the necessity of the thirty days notice, and the effect of such payment of rent, by introducing in evidence an instrument purporting to be a lease from them to Cox, from January 1, to February 28, 1878, at a rental of two hundred dollars for the term, when the actual rental value was more than double that amount. Looking at the circumstances attending the transaction of bringing that so-called lease into existence, and the apparent motives for the act, we can not but regard it as partaking much more of the character of a poorly disguised juggle, than of an actual agreement, of which voluntary consent, manifested in some manner recognized by law, is an indispensable basis.

The alleged execution of the instrument on the part of Cox was procured by Myers, the agent of the plaintiffs, by inducing Blattner, a young clerk of Cox’s, to sign it on his behalf while Cox was absent in Europe purchasing goods, the clerk having no authority from Cox and expressly telling Myers at the time of signing it for Cox that he had no authority to sign it.

The.evidence clearly shows that Cox, at no time after being apprised of the act, intended to ratify, but that he did everything possible to repudiate it. The only act on the part of Cox which plaintiffs relied on as tending to show ratification was the payment, February 1, 1878, of two hundred dollars as rent, and which would scarcely cover the rent at the proper rate for January alone. That was paid by his clerk while Cox was absent as above stated. His directions to the clerk were to pay the rent under tíre agreement for a lease made in December, and he never consented that it might be applied on the so called short lease.

The court below gave plaintiffs’ fourth instruction respecting the ratification by Cox of the short lease, but refused the eleventh asked by the defendants, that “ If the jury believe from the evidence that the lease offered in evidence from plaintiffs to Cox, dated January 3, 1878, and expiring February 28, 1878, was executed by Blattner without any authority from Cox, and that Myers had notice of such want of authority at the time Blattner signed said lease, and that said lease was not accepted or ratified by said Cox, then such lease was not binding upon said Cox and should not be regarded by the jury in their verdict in this case.”

Manifestly that instruction should have been given. For the errors indicated, the judgment of the court below will be reversed and the cause remanded.

Judgment reversed.