Mr. Justice Scholfield
delivered the opinion of the Court:
The first question presented on this record is, whether the agreement between the parties made in the latter part of March, 1871, for the renting of the premises from May 1,1871, to May 1,1872, was a present letting. Appellant insists that it was, and cites numerous authorities, which he claims sustain his position. We think the authorities are inapplicable to the case as made by the evidence. In determining whether an instrument is a lease, or only an agreement for a lease, the question is said to be one of construction, to be determined according to what appears to be the paramount intention of the parties, as such intention may be collected from the whole tenor and effect of the instrument. Taylor on Landlord and Tenant, § 38. The rule must equally obtain where the agreement has not been reduced to writing, as where it has been, that is, the intention of the parties, as ascertained from the words of the agreement, must, in such cases, as well as where there is written evidence of the contract, cpntrol. When this agreement was made, appellant was in possession of the premises under a prior lease, the term of which did not expire for more than a month. That lease was not canceled, nor does it appear that it was desired it should be canceled. Appellant’s possession during the continuance of that term, could, therefore, be only under and by virtue of that lease. The term about which the parties agreed, was not to commence until the term then running had expired, which was on the 1st of May, 1871; and it was expressly understood between them, that a formal lease for the premises was to be executed. Before the expiration of the existing term, and the commencement of the new term, namely, on the 27th of April, 1871, appellee withdrew his proposition to let appellant have the premises from May 1, 1871, to May 1,1872, so there was no period of time between the making of the agreement and the withdrawal of the proposition by appellee, within which appellant could possibly have made an entry under the agreement. This brings us to the question, whether, under the evidence, appellee’s withdrawal of his proposition to let appellant have the premises, and his notice to him that if he continued to hold over after the 1st of May, 1871, he would be held to other and different conditions, was a sufficient rescinding of the agreement of the last of March, or did that agreement still continue in force, notwithstanding this attempt to rescind it ? If we shall hold the former, then, obviously, the question discussed, whether the duplicate of the lease signed by appellee, but retained in his possession, and never delivered to appellant, was sufficient to relieve the case from the effect of the first section of our statute of “ Frauds and Perjuries,” is unimportant; but, if otherwise, and in that event only, it will become necessary also to pass on that question.
The agreement being for a lease, would have been discharged by the execution of a lease in conformity with the terms of the agreement. This was to have been done, by necessary implication, nothing being said in the agreement as to time, within a reasonable time before the commencement of the term. Both appellant and appellee were entitled to exact this. Appellee was entitled to have the agreement consummated, so as to know that his premises were certainly let upon terms satisfactory to himself, and their performance guaranteed, in such time as would enable him to secure the continuous occupancy of his premises by a tenant; and appellant was entitled to its consummation, in such time as to insure himself against being deprived, for any length of time, of a place of business.
On the 16th of April, 1871, appellee executed, in duplicate, a lease to the premises, in conformity with the agreement, one copy of which he signed' himself, and the other he sent to appellant, to be signed by him. When this was done, appellee’s agent was instructed to hand appellant the duplicate signed by appellee, and return to him the one signed by appellant. The duplicate was sent immediately upon its execution, by appellee’s agent, to appellant, and he was notified by the agent of his instructions, and requested to sign it; but he refused to do so. For this refusal he furnishes no excuse whatever. Ho objection is made that the instrument was, in any respect, incorrect, or that it was not strictly in conformity with the agreement. He does not pretend that he failed to comprehend its terms, or that he wished to have legal counsel. He wanted to see appellant, he said, first; not about what ought to have been in the lease but was omitted, but “ to make some arrangements about a shed,” etc.; in other words, to make another agreement. It does 'not appear that the situation of these parties was such that appellant could not have seen appellee, at any time he had chosen, with but little trouble, but he seems not to have cared to put himself to that trouble. Appellee’s evidence is that he repeatedly tried to get appellant to sign the lease, but was unable to do so. Finally, on the 27th of April, only four days before the expiration of appellant’s term, appellee sent him a notice, in writing, that, in consequence of his having repeatedly declined to sign the lease, he withdrew all offers he had made to rent the property to him. Appellant then, after receiving this notice, signed the duplicate, and followed appellee’s agent to where appellee was, when appellee again verbally notified him that, in consequence of his repeated neglect and refusal to sign the lease, in proper time, he had withdrawn the proposition to rent the premises, and, if he then rented, he must take the whole property, etc. We think the evidence is clear that appellant refused to sign the lease within what, under the circumstances, was a reasonable time. Appellee was only bound to give him a reasonable time within which to satisfy himself with its contents and to sign it, and this he had before being notified that the proposition to rent was withdrawn. Our conclusion, therefore, necessarily is, that appellee had the legal right to rescind the agreement because of appellant’s refusal to comply with its terms within a reasonable time. The agreement having been rescinded before the commencement of the term to which it related, no entry could be made under claim of a license which it, if unrescinded, might have conferred.
The next question is, whether appellant, continuing to hold over after the expiration of his term, and with full notice that, if he did so, he would be charged for the rent of the whole property, at the rate of $12 per foot front on Halsted street, is to he charged only with the same rent, which he paid the preceding year for the half of the property which he then occupied. This is the claim made by appellant; he concedes that, if he had held over, after notice of the terms, without objection, he might be held responsible upon the contract. But what difference can his objection make? The property belonged to appellee, and he surely might charge for its use what he pleased. If appellant was not willing to accede to his terms, he should have left the property.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Scholfield
delivered the opinion of the Court:
The first question presented on this record is, whether the agreement between the parties made in the latter part of March, 1871, for the renting of the premises from May 1,1871, to May 1,1872, was a present letting. Appellant insists that it was, and cites numerous authorities, which he claims sustain his position. We think the authorities are inapplicable to the case as made by the evidence. In determining whether an instrument is a lease, or only an agreement for a lease, the question is said to be one of construction, to be determined according to what appears to be the paramount intention of the parties, as such intention may be collected from the whole tenor and effect of the instrument. Taylor on Landlord and Tenant, § 38. The rule must equally obtain where the agreement has not been reduced to writing, as where it has been, that is, the intention of the parties, as ascertained from the words of the agreement, must, in such cases, as well as where there is written evidence of the contract, cpntrol. When this agreement was made, appellant was in possession of the premises under a prior lease, the term of which did not expire for more than a month. That lease was not canceled, nor does it appear that it was desired it should be canceled. Appellant’s possession during the continuance of that term, could, therefore, be only under and by virtue of that lease. The term about which the parties agreed, was not to commence until the term then running had expired, which was on the 1st of May, 1871; and it was expressly understood between them, that a formal lease for the premises was to be executed. Before the expiration of the existing term, and the commencement of the new term, namely, on the 27th of April, 1871, appellee withdrew his proposition to let appellant have the premises from May 1, 1871, to May 1,1872, so there was no period of time between the making of the agreement and the withdrawal of the proposition by appellee, within which appellant could possibly have made an entry under the agreement. This brings us to the question, whether, under the evidence, appellee’s withdrawal of his proposition to let appellant have the premises, and his notice to him that if he continued to hold over after the 1st of May, 1871, he would be held to other and different conditions, was a sufficient rescinding of the agreement of the last of March, or did that agreement still continue in force, notwithstanding this attempt to rescind it ? If we shall hold the former, then, obviously, the question discussed, whether the duplicate of the lease signed by appellee, but retained in his possession, and never delivered to appellant, was sufficient to relieve the case from the effect of the first section of our statute of “ Frauds and Perjuries,” is unimportant; but, if otherwise, and in that event only, it will become necessary also to pass on that question.
The agreement being for a lease, would have been discharged by the execution of a lease in conformity with the terms of the agreement. This was to have been done, by necessary implication, nothing being said in the agreement as to time, within a reasonable time before the commencement of the term. Both appellant and appellee were entitled to exact this. Appellee was entitled to have the agreement consummated, so as to know that his premises were certainly let upon terms satisfactory to himself, and their performance guaranteed, in such time as would enable him to secure the continuous occupancy of his premises by a tenant; and appellant was entitled to its consummation, in such time as to insure himself against being deprived, for any length of time, of a place of business.
On the 16th of April, 1871, appellee executed, in duplicate, a lease to the premises, in conformity with the agreement, one copy of which he signed' himself, and the other he sent to appellant, to be signed by him. When this was done, appellee’s agent was instructed to hand appellant the duplicate signed by appellee, and return to him the one signed by appellant. The duplicate was sent immediately upon its execution, by appellee’s agent, to appellant, and he was notified by the agent of his instructions, and requested to sign it; but he refused to do so. For this refusal he furnishes no excuse whatever. Ho objection is made that the instrument was, in any respect, incorrect, or that it was not strictly in conformity with the agreement. He does not pretend that he failed to comprehend its terms, or that he wished to have legal counsel. He wanted to see appellant, he said, first; not about what ought to have been in the lease but was omitted, but “ to make some arrangements about a shed,” etc.; in other words, to make another agreement. It does 'not appear that the situation of these parties was such that appellant could not have seen appellee, at any time he had chosen, with but little trouble, but he seems not to have cared to put himself to that trouble. Appellee’s evidence is that he repeatedly tried to get appellant to sign the lease, but was unable to do so. Finally, on the 27th of April, only four days before the expiration of appellant’s term, appellee sent him a notice, in writing, that, in consequence of his having repeatedly declined to sign the lease, he withdrew all offers he had made to rent the property to him. Appellant then, after receiving this notice, signed the duplicate, and followed appellee’s agent to where appellee was, when appellee again verbally notified him that, in consequence of his repeated neglect and refusal to sign the lease, in proper time, he had withdrawn the proposition to rent the premises, and, if he then rented, he must take the whole property, etc. We think the evidence is clear that appellant refused to sign the lease within what, under the circumstances, was a reasonable time. Appellee was only bound to give him a reasonable time within which to satisfy himself with its contents and to sign it, and this he had before being notified that the proposition to rent was withdrawn. Our conclusion, therefore, necessarily is, that appellee had the legal right to rescind the agreement because of appellant’s refusal to comply with its terms within a reasonable time. The agreement having been rescinded before the commencement of the term to which it related, no entry could be made under claim of a license which it, if unrescinded, might have conferred.
The next question is, whether appellant, continuing to hold over after the expiration of his term, and with full notice that, if he did so, he would be charged for the rent of the whole property, at the rate of $12 per foot front on Halsted street, is to he charged only with the same rent, which he paid the preceding year for the half of the property which he then occupied. This is the claim made by appellant; he concedes that, if he had held over, after notice of the terms, without objection, he might be held responsible upon the contract. But what difference can his objection make? The property belonged to appellee, and he surely might charge for its use what he pleased. If appellant was not willing to accede to his terms, he should have left the property. He had no right to remain in possession against appellee’s wishes, and force him to accept himself as a tenant, on the same terms that he held the property the preceding year, notwithstanding his objection to appellee’s terms, inasmuch as appellee did not, upon his urging his objections, consent to modify them, his subsequent holding over raises the presumption that he finally concluded to accede to them—and that his tenancy from May 1, 1871, to May 1, 1872, was by contract for the entire premises, at the rate of $12 per foot front on Halsted street. This is within the principle announced in Higgins v. Halligan, 46 Ill. 173.
There was evidence before the jury from which they were authorized to find an actual occupancy, by appellant, of the entire premises. It was not necessary that the evidence should show, for this purpose, that he was constantly using the premises: — possession being once taken, the agreement determines the period to which the liability of the party extends. Taylor on Landlord and Tenant, § 646.
We deem it unnecessary to enter into a critical examination of the instructions given and refused. The verdict is more favorable to appellant than he was, under the evidence, entitled to have it, and it does not lie with him to say it shall therefore be reversed. Even if there was, therefore, error in respect to the instructions, appellant has not been prejudiced thereby.
The judgment is affirmed.
Judgment affirmed.