226 Ill. App. 397 | Ill. App. Ct. | 1922
delivered the opinion of the court.
Plaintiffs brought an action in assumpsit claiming that defendant as assignee lessee was obligated for certain rentals and advances under the terms of the lease. Upon jury trial the court peremptorily instructed to find for defendant, and upon such verdict judgment was entered, from which plaintiffs appeal.
The lease was of a business building on Washington street in Chicago, made February 1, 1907, to Donnell Safe Company, a corporation, as lessee, for a term of ninety-nine years. The lessee obligated itself to pay rentals, taxes, special assessments, attorney’s fees, and to keep the premises in repair.
The Donnell Safe Company occupied under the lease until May, 1910, at which time, by an-instrument in writing in the nature of a deed poll duly signed, sealed, acknowledged and recorded, it assigned all its interest in said lease to the defendant, Messinger. The assignment contained the following provision:
“And in consideration of this assignment and transfer by the said Donnell Safe Company, a corporation, the said Samuel Messinger for and on behalf of himself, his successors or assigns, hereby accepts and assumes all the terms, covenants, and agreements in the said lease contained, and will comply with them, and be bound by them, and will keep and perform all the covenants and agreements in the said lease contained.”
Messinger did not sign this instrument. Subsequently July 13, 1917, by a writing duly executed, signed, sealed and acknowledged by both parties and recorded in the recorder’s office, Messinger assigned said leasehold estate to Oscar C. Hagen. This instrument describes the lease and the assignment thereof to Samuel Messinger, with the date of that assignment, names of the parties, book, page and number of the instrument as recorded in the recorder’s office, and the following clause:
“* * * reference to which indenture of lease and which assignment and the record thereof is hereby made and which indenture of lease and assignment and the record thereof are hereby made a part hereof by reference thereto, as fully to all intents and purposes as if set forth in full in the body hereof, together with all the right, title and interest of the said Samuel Messinger in and to said indenture of lease and in and to said assignment * *
Plaintiffs claim that after the assignment to Mes-singer he entered into possession of the premises, occupied and paid rental therefor and performed some of the other obligations of the lease for some years. Defendant asserts there was no proof of this.
Plaintiffs’ claim is made up of items accruing under the lease after the assignment from Messinger. to Hagen. The trial court apparently being of the opinion that as Messinger had not signed the instrument of assignment from Donnell Safe Company to him, there was no privity of contract between the lessors and Messinger and, after the assignment to Hagen, no privity of estate and therefore no basis for the liability of defendant claimed by plaintiffs.
We hold that Messinger, by privity of contract, assumed the obligations of the lease and was liable for their performance. The mere fact that Messinger did not sign the instrument of assignment from the Donnell Safe Company to him does not necessarily release him from its covenants. If he did anything indicating that he accepted it, he thereby assumed its obligations. If it was not sufficiently shown in evidence that defendant occupied the premises, paying rental and performing the obligations of the lease, such proof should be made upon another trial. But the acceptance by defendant of the' assignment to him sufficiently appears from the recitals in the assignment executed by him to Hagen, wherein the assignment to Messinger is incorporated.
There is no merit in the contention that the assignment " to Messinger was void under the statute of frauds because it was not signed by him. His signature to this document would amount to no more than evidence of his acceptance of the same, and this acceptance may be shown in other ways.
There is abundant authority, both in this cotintry and in England, that the statute of frauds has nb application to conveyances of lands, rents or profits out of the same. Acceptance is to be considered, with reference to the assumption of contractual obligations, as the equivalent of signing the contract. Worden v. Sharp, 56 Ill. 104; Kershaw v. Kershaw, 102 Ill. 307; McFarlane v. Williams, 107 Ill. 33; Dean v. Walker, 107 Ill. 540; Webster v. Fleming, 178 Ill. 140; Springer v. DeWolf, 194 Ill. 218; Sanitary Dist. of Chicago v. Chicago Title & Trust Co., 278 Ill. 529; 2 Coke’s Littleton, 230 b, sec. 374; 1 Shepard’s Touchstone, 177; 3 Preston Abstracts, 61; Cherry v. Hemming, 4 Exch. 631; Challis Real Prop. (3rd Ed.) 404.
We are also of the opinion that the signature of the defendant to his assignment to Hagen, reciting and incorporating the document containing his promises, is sufficient to bind him even under the statute of frauds. Wood v. Davis, 82 Ill. 311; Lasher v. Gardner, 124 Ill. 441; Ullsperger v. Meyer, 217 Ill. 262; Bonner & Marshall Co. v. Hansell, 189 Ill. App. 474.
While the privity of estate was terminated by transfer of possession of the demised premises, the contractual liability was not thus terminated. Springer v. DeWolf, 194 Ill. 218; Barnes v. Northern Trust Co., 169 Ill. 112; Webster v. Fleming, 178 Ill. 140; Scholten v. Barber, 217 Ill. 148; Chicago & M. Tel. Co. v. Type Tel. Co., 137 Ill. App. 131; Elwell v. Hicks, 180 Ill. App. 554; McConnell v. General Roofing Mfg. Co., 187 Ill. App. 99; Thompson v. Western Casket Co., 219 Ill. App. 184.
The subsequent acceptance of rent from Hagen does not relieve Messinger from his obligations under the assignment to him.. Grommes v. St. Paul Trust Co., 147 Ill. 634; Barnes v. Northern Trust Co., 169 Ill. 112; McConnell v. General Roofing Mfg. Co., 187 Ill. App. 99.
Defendant claims that plaintiffs did not object or except to the peremptory instructions to find the issues for defendant, hence the giving of this instruction is not reviewable. Such an objection or exception is unnecessary. In Miller v. Anderson, 269 Ill. 608, section 81 of the Practice Act, ch. 110 [Cahill’s Ill. St. ch. 110, ¶ 81], was construed to mean “to do away with the necessity of incorporating in the record * * * the formal exceptions, in order to preserve for review the rulings of the trial court.” See also City of Lewistown v. Harrison, 282 Ill. 461; Village of Bradley v. New York Cent. R. Co., 296 Ill. 383; Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162. There are many other cases holding likewise.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Dever and Hatchett, JJ., concur.