74 Ill. App. 602 | Ill. App. Ct. | 1898
delivered the opiniok oe the Court.
When. plaintiff below offered in evidence the lease and assignments thereon and thereto attached, and also the consent of the railroad companies, the defendant objected to it for two reasons: First, because the instrument executed by Mrs. M. A. Hobbs and husband to appellee was not an assignment of the lease; second, because, in the language of appellant’s counsel, “The subject-matter of the covenant between the two railway companies as to stopping trains was not in esse at the time of the execution of the lease; it was a covenant to do something in the future, of a personal nature, which the railway companies might be willing to undertake with Mrs. G-oe, but not with her assignees. It was not a covenant that ran with the land.”
As the first ground of objection does not appear to be seriously insisted upon, it may be disposed of by observing that Section 15 of Chapter 80 of the Eevised Statutes of this State, which makes a lease assignable so as to give the assignee a right of action thereon in his own name, unlike the statute governing the assignment of negotiable instruments, does not require the assignment when in writing to be indorsed upon the instrument itself, and hence it may be . assigned by any instrument or agreement showing an inten- ' tion to dispose of it. It is true Mrs. Hobbs and. her husband do not use the word “ assign ” in the instrument executed by them, but they do use the word “ sold ” which is, as used, equivalent to “ assign ” as we think, and that is sufficient. As the sale was of the entire hotel property, and the instrument refers to the lease and by its terms was to be attached to and become a part of the lease, and since all of the parties, and particularly appellant itself, understood that the lease was being assigned, we must hold the instrument executed by Mrs. Hobbs and her husband effective for that purpose.
As to the second ground of objection to the introduction of the lease in- evidence, it would seem that a complete answer to it is, that although the agreement to stop the trains was and might have remained personal to Mrs. Goe, as far as anything she could do was concerned, yet when she assigned her lease by the consent of the lessors, as to all of the agreements of the lessors to be performed in the future by Mrs. Goe, the assignee of the lease stood in Mrs. Goe’s shoes, and had been fully accepted by the lessors in her stead. By the assignment and consent thereto, the lease became in effect a new lease to appellee for the unexpired portion of the term it had to run, and the benefits' of all the agreements and undertakings on the part of appellant yet to be performed, passed to appellee, if not by express contract between the lessors and appellee, then certainly by virtue of section 15 of the landlord and tenant act, above referred to.
The agreement of appellant to stop its passenger trains for meals, was not for a single isolated act or series of acts, to be done for-the benefit of Mrs. Goe only, but the acts were to be continuous and ran with the lease for the benefit of whoever should become the legal owner of it.
The court did not err in admitting the lease in evidence.
By a series of questions propounded to some of appellee’s witnesses, they were allowed, against the objection of appellant, to testify that the number of passengers passing Barker City on the Cairo Short Line (really the St. Louis, Alton & Terre Haute Railroad), and appellant’s road were about the same; that two trains on the Short Line stopped for a time at Barker City for dinner, one at 1:15 and the other at 2:15 p. m., and that the number of passengers from the Short Line thus stopping for dinner would average twelve or fourteen per day. One or more of the witnesses were allowed to testify to substantially the same facts, prior to the time appellee had anything to do with the hotel, and all for the purpose, after proving the average cost of preparing a meal and the price it was sold for, of laying a foundation for the- jury to compute the damages appellee was entitled to recover of appellant, for a breach of its covenant in not stopping its trains for breakfast and supper. The two roads cross each other nearly at right angles, and their termini are wide apart, and no presumption can be drawn from the fact that a certain number of persons on the average, traveling on the Short Line road, stopped for dinner at Barker City, that any particular number on the average, traveling on appellant’s road, would stop for either breakfast, dinner or supper at the same place. Greenleaf on Ev., Sec. 52.
Hearly, if not quite all of the evidence offered by appellee to establish the amount of damages suffered, was of this character, and in overruling appellant’s objection to it, the court erred, and it also erred in giving to the jury any of' the plaintiff’s instructions based on such evidence, and for these errors the judgment of the Circuit Court is reversed and the cause remanded.