70 Ill. App. 349 | Ill. App. Ct. | 1897
delivered the opinion oe the Court.
The lease being of the premises, 143 and 145 Lake street, “ with the appurtenances,” except' certain portions of the building, the land upon which the building stood and that appurtenant thereto, passed to the lessees. Wood on Landlord & Tenant, Sec. 212; Sherman v. Williams, 113 Mass. 481; Shep. Touchstone, 94.
Such being the case, the partial destruction of the building did not terminate the lease. Nonotuck Silk Co. v. Shay, 37 Ill. App. 542.
Did appellee, by rebuilding, release appellant from its liability as a tenant ?
Had appellee done, nothing, appellant would have had to pay rent to the end of the term, for a building which, in the condition it was left by the fire, was useless. The act of appellee in rebuilding was therefore in the highest degree beneficial to appellant. So far from the rebuilding being a thing of which appellant may justly complain, it was for its interest and benefit, and went on without its protest.
There was, by appellee, no interference with appellant’s possession, save such as was. necessary in order to rebuild, and none to which appellant objected.
Appellant was by the fire driven out of the building; only a small quantity of its goods remained in the premises. Doubtless it could have insisted upon its right to full possession of all it had rented, and thus prevented a rebuilding by appellee, or it might itself have rebuilt, but it evinced no disposition to do either. • . •
Meither the rebuilding by appellee nor the request to appellant to remove its barrels, etc., was an eviction. Wood, Landlord and Tenant, Sec. 481; Nonotuck Silk Co. v. Shay, 37 Ill. App. 542.
Did the offer by appellee to rent the premises, and the actual renting of them by him, discharge appellant from its liability l
Before this was done, appellant had not only stopped paying rent, but insisted that its tenancy was at an end.
The reletting of the premises was for the benefit of appellant, as thereby the amount of its liability was diminished. Scott v. Beecher et al., 91 Mich. 590; Rich v. Doyenn, 85 Hun, 510; Lane v. Nelson, 31 Atl. Rep. 864.
Whenever a breach of contract is made, the party against whose right the breaking is should endeavor to make the consequent damage as light as possible. Sutherland on Damages, Vol. 2, 473; Joslin v. McLean, 99 Mich. 450.
A surrender of premises by a tenant during a term, to be effectual so as to amount to a termination of the tenancy, must be accepted by the lessor.
In the present case appellee refused to accept the surrender, and notified appellant that the building was ready for its occupancy.
Taking possession of premises by a landlord, with the apparent consent of a tenant, for the purpose of making necessary repairs, is not an eviction; nor is a tenant, who has abandoned premises and refused to pay rent, relieved from liability by the action of his landlord in renting the premises to another party, save to the extent of the rent so received by the landlord from another. Nonotuck Silk Co. v. Shay, 37 Ill. App. 542; Scott v. Beecher, 91 Mich. 590; Stewart v. Sprague, 71 Mich. 50; Rich v. Doyenn, 85 Hun, 510; Joslin v. McLean, 99 Mich. 480.
The judgment of the Superior Court is affirmed.