41 Ill. App. 562 | Ill. App. Ct. | 1891
The defendant, Kurrus, having in process of construction in East St. Louis, a brick building, entered into following contract with Levy and Persall to lease the same to them:
“ We, the undersigned, agree to lease of Joseph A. Kurrus, of East St. Louis, Ills., a brick building to be erected on lot 14, block 172, town of East St. Louis, in the city of East St. Louis, Illinois. The building to be 28 feet by 70 feet and to be ready for use on or before January 1,1889, for a term of three years, with a privilege of five years, at a rental of §275 per annum.
“Joseph Levy,
“S. E. Pbbsall.
“ Dated Oct. 13, 1888.”
Possession was taken by Levy and Persall about January 1, 1889, of said building, who used it for the purpose of keeping horses and feed for horses and occasionally they hired out some of the horses so kept by them. At the expiration of about one year, Persall bought Levy’s interest in the business and thereafter ran the same until about the loth day of February, 1890, when he sold out to Blake, the plaintiff, with the consent of the defendant, and indorsed the written contract to Blake, who took possession of the premises. Prior to this time and before Persall bought out Levy, Persall had asked Kurrus to make out a lease of the premises to him in accordance with the contract, which Kurrus had agreed to do but had neglected it, until shortly after Blake took possession, when the lease was made out and signed by Persall, which, being made out in duplicate, was presented by Persall to Blake for acceptance, but refused, just for what reason is not made clear, without it was that the lease contained provisions not in the original contract for leasing. This lease was dated back to January 1, 1890, and ran for a period of two years from that date, at a rental of 8275 per year and provided that it was to be used for a feed store and sale stable and for no other purpose, without the written consent of lessor. This was what it was used for by the original parties.
The defendant had a livery stable right across the way and did not want to encourage competition with his business. The defendant, evidently understanding that Blake was in possession under the lease with Persall, he not having been notified of Blake’s refusal to accept such lease, on the 19th day of March, 1890, notified Blake that he would terminate the lease for his default in keeping a feed stable instead of a feed store and sale stable.
lie also, on the 3d day of April, 1890, notified Blake that he was in default in the payment of rent and unless paid before the 9th day of April, he would terminate the lease.
After this the water was shut off from the building, whereupon, on the 7th day of April, 1890, Blake made written demand on Kurrus to turn on the water or supply another system, or he would Tácate the premises and hold him responsible for damages. The water not being turned on, Blake, on the 15tli day of April, 1890, served written notice on Kurrus, that in consequence of his wilful interference and annoyance in turning off the water necessary to the use of the premises, he would vacate the premises and hold him responsible for damages. Whereupon this suit was brought, and on trial the jury awarded him damages in the sum of $50, which, not being satisfactory, he moved for a new trial, which was overruled and judgment entered 'on the verdict, from which this appeal is prosecuted and numerous errors assigned.
The main ground of complaint is that the plaintiff was deprived by the defendant of the use of the premises for the residue of the unexpired term for which Levy and Persall had contracted for a lease, and that in this view the damages are insignificant that were awarded the plaintiff. If this was the proper view to take of the case, we would unhesitatingly reverse and remand it, but we take a different view.
The plaintiff, notwithstanding the defendant consented to the assignment of the contract with Persall and Levy to Blake and his occupancy of the premises, did not obtain any additional or other rights thereby than those conferred by that contract on Persall and Levy. By that contract it will be observed that they agreed to lease of Kurrus, the premises for a certain time at a certain rental. It does not purport on its face to be other than an agreement for a lease, and it was not abrogated by any other agreement. It was regarded by them, and each of them, as in full force, and the plaintiff still so regarded it when he took possession, only he made the mistake in supposing that it was a lease instead of an agreement for a lease. It is evident that Persall did not understand it to be a lease or he would not have signed the lease of date January 1, 1890, agreeing to pay the rent. Blake refused to accept this lease, and claimed his rights were under the original contract, which, as seen, being merely an agreement for a lease, made his occupancy one under a verbal leasing and for a period longer than one year, and therefore within the statute of frauds, which, under the authority of Creighton v. Sanders, 89 Ill. 543, became only a tenancy from month to month. Hence whatever damages he sustained was under such a leasing. The defendant, therefore, having the right to terminate the lease or occupancy at the end of any month, we can not say that the damages allowed were not compensatory. The plaintiff testified that he had put in a telephone that cost him $50, liad bought hose that cost him 87.50 and been to some other expense, that in all amounted to $115 or $120; that he had three regular customers and several transient ones; that he had sold six or eight horses and two or three mules. His telephone and hose would not be an entire loss to him, and his profits in the business were evidently not very large.
It will be observed that the court below gave instructions on the theory that the original contract for a lease, was a lease, and authorized the jury to consider damages, if any, for the eviction, for a period of one year and eight months. This was a more liberal instruction than the plaintiff was entitled to. It would subserve no interest to review all the errors assigned. We think substantial justice has been done, and therefore affirm the judgment.
Judgment affirmed1.
