22 Ill. 190 | Ill. | 1859
This was an action of covenant instituted by appellant against appellee to recover damages for a failure to restore and surrender the possession of premises, at the end of the .term. The appellant after leasing to appellee and before the lease had expired, executed a lease of the same premises to John Maynard for five years, to commence on the first day of May, 1856, and on the expiration of the first lease. After Maynard had obtained his lease, and early in April, he went to Van Buskirk whom he found in possession, as the under-tenant of appellee, and gave him permission to remain in possession after his lease commenced, and for the purpose of getting rid of his lease, arranged with Van Buskirk that on a demand of possession which he would make, on the first day of May, 1856, possession should not be given, but Maynard swears that after consulting counsel and finding that such an arrangement would not enable him to compel appellant to cancel his lease, he informed Van Buskirk that he would have nothing more to do with the arrangement. Mrs. Van Buskirk testifies that two or three days before the first of May, Maynard came and directed her when he should make a demand of possession on the first of May, to refuse to surrender it, and that when the demand was made at that time, in pursuance to those directions delivery of possession was refused, and that Van Buskirk continued to hold possession in pursuance of that direction. Appellee on the second or third day of May called to see why Van Buskirk had not vacated the premises, when he was informed by the family that they were then in possession under Maynard, who had a lease from the appellant. Under this evidence and the instructions of the court the jury found a verdict in favor of the appellee, and appellant entered a motion for a new trial which was overruled by the court and judgment rendered upon the verdict, from which he prosecutes this appeal.
That the arrangement made by Maynard with Van Buskirk was such as would have enabled him to recover rent, had he not surrendered his lease there can be no question. His lease was to commence and did commence on the first day of May, and when the demand of possession was made, Maynard was entitled to the • possession, and if it was retained by Van Buskirk at his request, and with the arrangement that he was to continue in the occupancy of the premises, it amounted to an attornment by Van Buskirk to Maynard the lessee, and the possession in fact by the arrangement of the parties became that of Maynard. He had such an interest in the premises as authorized him on the first day of May to receive the possession by an agent or under-tenant. The possession of Van Buskirk on the first day of May and after-wards, until the lease was cancelled, was the possession of Maynard. And there can be no doubt if the lease had not been canceled the appellant could have held Maynard liable for the payment of the rent and to a performance of all the covenants on his part contained in the lease, upon the proof of possession disclosed in this record.
Again the lease recites, and by it Maynard agrees that he has received the possession of the premises. And when it is remembered that the lease bears date on the fourth day of April, 1856, and the arrangement between Maynard and Van Buskirk, sworn to by Mrs. Van Buskirk, took place about the first of April, it is a circumstance which would seem strongly to indicate, that he had at the time of entering into the lease an arrangement with Van Buskirk for possession. That Maynard imposed upon appellant seems to be clear, but in the whole of this transaction appellee seems to have had no concern, as there is no portion of the evidence tending in the slightest degree to implicate him as taking any part in the arrangement. He was not in a position to recover possession at the expiration of the lease from himself to Van Buskirk, because upon the termination of that lease, Van Buskirk ceased to be his tenant by attorning to Maynard, and had he sued for the possession Van Buskirk could have successfully set up his lease from Maynard who had the undoubted right, to continue him in possession. , And as the appellant had placed it in Maynard’s power to continue Van Buskirk in possession by giving to him the lease, appellee should not be held responsible for Maynard’s acts, and if loss shall be sustained by any one, it should be by appellant, who gave the power to Maynard to receive the possession. Again as Maynard became appellant’s tenant by the execution of the lease, possession by himself or the under-lessees became appellant’s possession. And when Maynard received the possession by the occupancy of Van Buskirk under him, appellee’s covenant to restore possession was fully performed by the possession of appellant’s tenant. So that in any point of view in which we can look at the case, we are unable to perceive any grounds upon which to hold that appellee should be held liable for a breach of his covenant, unless the evidence in the case was untrue. And the credibility of the witnesses and the weight that shall be given to their testimony are questions to be determined by the jury. They in this case have decided it in favor of the appellee and with that finding we are not disposed to find fault, as the evidence so far as we can see, justifies their verdict.
The instructions given by the court both for plaintiff and defendant, present the law arising on the facts in evidence, as we believe, correctly. We are unable to perceive that they are calculated to mislead the jury or are in any other respect erroneous. We are therefore of the opinion, that the court below committed no error in giving them. The record presents no cause for reversing the judgment of the Circuit Court, and the same must therefore be affirmed.
Judgment affirmed.
Breese, J. I do not concur in affirming this judgment for the reason that the Court did not, in giving the instructions to the jury, advert to the contrivance and fraud of the parties, to deprive appellant of his just claim.