Laird v. Mantonya

83 Ill. App. 327, 1898 Ill. App. LEXIS 791

• Court: Appellate Court of Illinois
• Decided: May 26, 1899
• Status: Published

Opinion

Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a suit by appellee to recover rent under a written lease. The defense is that a power of attorney to confess judgment for rent due under the lease was altered after its execution, and that the lease had been terminated by the substitution of a third party as tenant under a verbal agreement.

Judgment was entered by confession, but subsequently the defendant was allowed to plead, the judgment standing as security. Issue was joined and the case heard before the court without a jury. Judgment was confirmed against appellant for the rent due under the lease.

We regard the alterations in the power of attorney, so far as they are material, as sufficiently explained by the plaintiff’s testimony at least to throw the burden upon appellant to show that the lease was not admissible in evidence by reason thereof.

The testimony is conflicting upon some points, but not materially so. The court saw the witnesses and heard all the evidence. The presumption is that the finding is right, and that, acting under the responsibility of his place, the judge determined correctly. Gaynor v. Harding, 76 Ill. App. 660.

We think the finding was correct, inasmuch as the evidence fails to show a clear intent of the appellee to make a new contract with the third party accepting him as a tenant and releasing the appellant. It was a question of fact to be determined from the evidence.

The contract of the original lessee continues in force unless the lessor accepts the assignee as sole tenant and absolves the original lessee. Acceptance of rent by the lessor from the assignee does not discharge the lessee. Grommes et al. v. St. Paul Trust Co., 147 Ill. 634, 648.

Ho propositions of law were submitted to the trial court and we must assume that court ruled correctly as to the law. Nat. Bank of Lawrence Co. v. LeMoyne, 127 Ill. 253.

The judgment of the Circuit Court is affirmed.