*1 (No. 18771. Giddings C. al. Defendants in Error, et
Charles vs. S. al. Plaintiffs in Error. et Donald Williams
Opinion October 19, filed *2 George Terwilliger, Jr., Pirkington, Edwin L. for in error. plaintiffs for defendants in
Vail, & Pramondon, error. Roe Mr. reported opinion: Commissioner Partrow 4, On April 1927, municipal of Chicago, error, Charles C. and Mary F. ob- Giddings, tained a judgment by confessiоn against plaintiffs in error, Donald Williams and S. wife, statement of claim for cognovit for rent of certain $225 April, 1927, together fees attorney’s and costs. $32.50 On
April 19, 1927, made a motion to vacate the judgment, the judgment was opened, affidavit filed by suppоrt motion was ordered to stand as their affidavit of merits. The case was heard court without a At jury. close of the evidence on behalf of the in error the on motion was confirmed. An appeal prosecuted Court for the Appеllate First District, where the judg- ment was and the case affirmed, comes to this court upon a writ of certiorari.
On October 13, 1925, error entered into written lease with defendants in error for a front and rear room in the North building Michigan avenue, to be used as a sales Chicago, room and workroom for the sale of linen merchandise. Defendants error occu- the remainder of the pied floor, and ground the apart- ments were a hall. The lease was to separated on expire rent until April 30, 1930, September 30, *3 to be month and thereafter. The per lease was $225 $275 attached to statement of claim of defendants in error, but it was not introduced in evidence and is not in the bill of It is claimed that exceptions. contаined clause re- the lessors to furnish a reasonable quiring amount of heat at reasonable hours from 1 until October This April 30. clause contained the “The of this following: provisions shall not in unless, fol- paragraph apply space immediаtely lessor shall to furnish'heat.” Then lowing, expressly agree followed a blank which in the attached to the space, copy statement of claim was not filled. merits filed in affidavit of by plaintiffs error, among that after into
other things, alleged entering possession in their continually busi- hampered premises interference of defendants in that error; ness de- error were between them- continually fendants in quarreling their caused disturbances in the selves and with employees, and customers business with transacting kept building in error; defendants in error did not furnish plaintiffs necessary during winter; employees in plaintiffs error were to fire the furnace compelled various to the failure times; of defendants in owing error to furnish in necessary heat, error suffered plaintiffs loss and their not great could that on employees work; several occasions the water was shut off of the building on account of the failure in of defendants error to pay tax; water that defendants in error took up carpet which was the entrance to the hall, premises in and shellacked the floor of the hall plaintiffs error, just before the Christmas which was the busiest time holidays, of the and and the entrance year, by blocking obstructing the business of in errоr was decreased; greatly while January February, customers were in the store of there error, conflict in the hall and conduct, this occurred swearing disorderly two or three times.
Plaintiffs in error were to make some permitted proof thеir above affidavit of mer- support allegations its, but the court refused to them to certain permit prove them made to defendants in and to error, complaints who collected the with reference rents, to certain agent acts affidavit of refused to alleged merits, permit them that bailiffs from various courts came prove to serve writs on defendants refused to them to the condition of heat in Febru- permit prove and that defendants in error interfered with the ary, 1927, in еrror in other all of which business of respects, in the affidavit of merits. The evidence shows were alleged that in made February, 1927, preparation *4 but could not their ar- to move to other quarters complete March until when but 6, 1927, they moved, rangements rent until 1, their they paid April trial court held that on account of the failure The defendants in error to furnish heat Feb- sufficient during such failure in error the
ruary right possibly gave plaintiffs to move so from the failed to do they but premises, and the waived рaid rent until and therefore they April their for the rent in right to vacate and were liable ques- tion. The Court held that Appellate February from November until remaining in case be their to held to have waived vacate might right the landlord facts warrаnted the court in finding months, failed to but heat those necessary furnish during if the cold as was so February evidence shows in the land- to warrant in told they the tenants vacating heat, lord do on account of lack of were to so going efforts made nеcessary evidence shows that they as soon to the premises secure located new quarters show such evidence would obtained, as new quarters the trial court errone- that while eviction; a constructive in the introduction of limitеd ously would not warranted the be evidence, Court yet Appellate the reason that the reversing to an offer as to what they error did not make expected a char- was of such the evidence offered unless prove, find law, undеr acter that the trial might, be prem- in error would warranted re- warranted in not be Court would ises, Appellate in this was a failure and that there versing judgment, should be affirmed. and the judgment respect is whether the alleged for determination question acts heat, alleged failure to together furnish a con- constituted such misconduct of defendants error as them justified of plaintiffs structive eviction refus- lease and canceling moving A abandon rent. tenant prem- further ing pay required fails to furnish as lаndlord where the ises of rent he must va- relieve the tenant lease, be no constructive eviction There can the premises. cate
487 v. Springer, without a surrender of the (Keating premises. posses a tenant fails to surrender Ill. Where 481.) 146 which thе landlord sion after the of acts by commission he would the tenant in abandoning premises, justify be liable and will will have waived such right be deemed to he rent the time occupied prem at least during the land Where Osten, Ill. ises. v. 93.) (Leiferman 167 the lease heat as required by lord fails to furnish be warranted the tenant would is such that temperature to tenant is not vacate obliged breach time after such once but entitled to a reasonable is a time question to do so. is a is generally What reasonable of law become a question such fact, yet may question minds would where the such that reasonable evidence.is time reasonable. reach the that the conclusion There in the evidence. No evidence was is no сonflict the close of the and at evi offered by in error the defendants error made dence of plaintiffs a motion to affirm the A motion for a finding judgment. or a directed a who offers no evidence verdict party evidence, is in the nаture of a demurrer to his opponent’s the motion en and the rule is is resisting party titled to the benefit of all of the evidence its most favor him and of all that be able presumptions aspect (Kee & therefrom. Co. Chapell Dairy drawn reаsonably McCune 248; Reynolds, Co. Ill. v. Pennsylvania v. 291 there is Rush, id. Where 188; Lloyd 489.) 288 id. v. 273 a a as to the facts and motion is made for no controversy a of law as to what such motion presents question finding, on the facts in the shall be entered record. Whether the facts sustain cause of action plaintiff’s or the defendant’s defense is of law which is question An for review in such motion. preserved Ill. Babbitt v. 468; derson v. Co. Keystone Supply 293 Grand Trunk Western Railroad Co. id. 267; Rigdon 285 226 More, v. id.
The uncontradicted evidence shows that from Novem- ber until March 6 defendants in error failed furnish reasonable amount of that were out heat; of coal a part time; little during February very furnished; employees had to fire the furnace and had to work their coats that the thermometer was as low as 60 de- on; were made to the and he grees; complaints landlord, to furnish heat did not do promised so; that plain- *6 tiffs in error to move in February; prepared March 6, moved on as soon as could they reasonably do the оf in error in the so; conduct re- the and control of was other management premises the en- such as to in error of full spects deprive plaintiffs the interference joyment of and constituted an with their a this un- business and thereto. Under damage contradicted was in error affirming evidence the court the judgment. but was not offered in evidence
The written lease of merits filed defend by was attached the affidavit that a copy court has held generally ants in error. This declaration, attached to a of a which is on, note sued the It is no of of the declaration. part forms no part bill a only a of record by and can become part record Ill. 56; Franey Boswell, of v. (Harlow exceptions. 15 Pl. Pr. Where 404.) of & 184; Ency. 26 Truе, p. id. v. 3 entered in vacation is confession a judgment record of the become part are filed they papers proper in a bill of (Water exceptions, embodied without being en is where judgment but Caton, 94,) Ill. man v. 55 and note attorney оf the warrant time, tered in term only become part confessed can is the judgment which in a bill of exceptions. by being preserved the record these authori Under Ill. 370.) Chytraus, v. (Boyles and we are court, not before is lease written ties the it leаse whether did written to determine unable de- furnished by heat should be not provide or did of the in error. But, regardless provisions fendants that heat shows written the uncontradicted evidence lease, furnished; was to be that this duty recognized not furnished in suf- defendants in that heat was error; ficient and that defendants repeatedly quantity, did not to furnish but promised keep promise. entered Under this uncontradicted evidence was erroneous.
Plaintiffs in error insist that the record shows trial in er- favor of defendаnts judge prejudiced ror; that he refused to witnesses to take the wit- permit ness stand man- so case could be tried in an orderly ner; that he took case cross-examined charge that he in advance that there was witnesses; assumed no merit in the manner and his was such as to in- defense, timidate the that after a few witnesses; questions asked he error; announced a finding against plaintiffs that he later, urgent request attorneys, permitted in error to other witnesses on stand, put said, “You can ahead think I case; I see go try your where are at if fellows are you now; to be right you pre- *7 cise all and that now, when evidence was con- right;” cluded the court found for defendants in error without in error to permitting attorneys argue questions involved. No would be served good purpose these contentions in detail. It is considering sufficient to that it is say statements made apparent that the case was tried upon theory any grounds for constructive eviction which have might existed were waived error, not justified on the admission rulings of evidence were As a theory. result, consider- able evidence was excluded competent in er- ror not have a fair and did trial. impartial The Appel- late held that these Court did not rulings сonstitute re-
versible error for the reason that in error did not make an offer as to what they From expected prove. the whole record we are that the attitude of opinion the court was such as to in error from prevent plaintiffs an making offer when the various items evidence were ruled In upon. view of the fact that other suits fol- low sums of involving large it was of the utmost money, that there importance should have on been rulings proper the admission of evidencе. were committed Errors on rulings evidence.
The judgment is reversed and the cause remanded. Per Curiam : Mr. foregoing opinion reported by Commissioner Partlow is as the hereby adopted opinion the court, and is entered in accordance therewith.
Reversed and remanded. (No. 19562.
Maggie Oswald, vs. et al. C. A. Appellee, Newbanks
Appellants. Opinion October filed