| Ill. | Oct 23, 1907
delivered the opinion of the court:
The theory of appellant’s bill relating to the right claimed by the appellees to turn off the light and heat from the theater and determine the lease for non-payment of rent is, that the lease bound the lessor to furnish appellant with an auditorium and stage so constructed that appellant would be authorized, under the ordinances of the city, to use movable scenery on the stage in giving performances. Section 164 of the building ordinances of the city is as follows:
“Sec. 164. Buildings of class 4 embrace all buildings in which no movable scenery is used upon the stage thereof. Class 5 embraces all buildings in which movable scenery is used.”
Section 176 prescribes the floor level of the auditorium in buildings of both classes. Section 182 prescribes the construction of the stage upon which movable scenery is to be used. Section 184 provides for a flue-pipe over the stage in buildings of class 5. Section 185 provides for an automatic sprinkler in buildings of class 5.
There is no direct averment in the bill that the lessor knew or understood appellant desired or intended to use movable scenery on the stage, and that he was leasing it for that purpose and with that understanding. Counsel argue that as the lease was for an auditorium and stage, “together with stock, scenery and equipment contained in said auditorium and stage,” and fixed the minimum price at which seats should be sold, stipulated that burlesque, minstrel or vaudeville shows should not be given in the theater, and provided that all plays produced therein should be of a high class, equal to those produced by any other of the local stock companies of the city of Chicago, and required appellant to provide all scenic equipment, and furnished' him a carpenter shop in which to produce it, and further bound the lessor to furnish appellant a first-class amusement license, it necessarily follows the use of movable scenery would be required and was contemplated by the parties to the lease, and that the covenants of said lease bound the lessor to furnish the appellant an auditorium and stage so constructed that under the ordinances appellant would be permitted to use movable scenery. Appellant contends that the lessor knew when and how the building, stage and auditorium were erected and constructed, and that he had a right, in taking the lease, to assume that it was so constructed that he would be authorized to carry on and conduct such performances as were contemplated by a first-class amusement license, and with the use of movable scenery on the stage.
There is no averment in the bill when the building and theater were constructed. The allegation is, “that on said last mentioned day, viz., the 30th of April, 1902, said premises were improved with a building called the Bush Temple of Music, * * * and part of said building was adapted to theater purposes.” The ordinances of 1898, under which the bill alleges the theater was closed in January, 1904, were by section 176 made to apply only to buildings of “new construction or re-construction or alteration, or improvement of existing buildings.” It is impossible to determine from the allegations of the bill when the building had been erected and the' auditorium and stage constructed and equipped. If this had been done prior to 1898, then the ordinances of 1898 relating to such buildings would not apply. If it was constructed after 1898, appellant cannot be heard to say he did not know that there were ordinances prohibiting the use of movable scenery, for the reason that he was as much charged with knowledge of the ordinances as the owner of the building. There is no averment of the bill that appellant did not know how the auditorium and stage were constructed, or that the Bush Temple of Music Company made any false representations to him in that regard, upon which he relied and by reason of which he accepted the lease.
We have above set out the substance of the averments of the bill as to the leasing to and use by appellant of movable scenery, and we cannot agree with appellant that these averments must be construed to be allegations that the lease necessarily contemplated the use of movable scenery. The lease did not mention movable scenery, nor is there anything contained in it from which it must necessarily be inferred that movable scenery was leased or contemplated being used. The covenant of the lessor to furnish appellant a first-class amusement license is of no value as an aid in determining the character of the scenery leased and to be used. Clauses 1 and 2 of section 99 of the ordinance above quoted are the provisions relating to the classification of entertainments as first and second-class. It will be seen from this ordinance that appellant’s right to use movable scenery did not depend upon whether his license was first-class or second-class. The kind of scenery he was authorized to use was determined by the construction of the auditorium and stage, and not from whether the license was first-class or second-class. It is not claimed by the bill that appellant’s possession was disturbed on account of the class of his license. No license could have authorized him to carry on his business in a building not constructed and equipped in accordance with the requirements of the ordinances, and appellant’s contention is that the city of Chicago took possession of the theater, under its police powers and by virtue of the ordinances, because the construction did not comply with said ordinances, and not because the lessor had furnished him with a second-class license. If appellant was damaged in any way on account of the failure of the lessor to furnish him a first-class amusement license his remedy is at law. It must be conceded that the lease impliedly covenanted with appellant for the quiet enjoyment of the demised premises, but if he could under any circumstances resort to a court of equity to set off against the rent damages sustained by reason of a violation of those covenants by some one claiming under a superior right, it would be necessary for the averments of the bill to show that his possession was disturbed by some one other than the public authorities of a city, under their police powers, on account of a violation of the ordinances by the lessee. We agree with the conclusion of the Appellate Court, stated in its opinion in the following language:
“Section 176 of the building ordinance, by its terms, applies only to buildings constructed or repaired after the ordinance took effect. Sections 182, 184 and 185 contain no such provision, but by their terms apply to buildings theretofore as well as to those thereafter constructed. There is in the bill no allegation as to when the building in question was constructed, nor that the lessee did not know, when the lease was executed, that it was constructed after the building ordinance of 1898 took effect. The lessee, equally with the lessor, must be presumed to have known of the provisions of the building ordinance in force when the lease was executed. Whether the floor level of the auditorium was within the limits of the first story of the building, as required by section 176; whether the stage was constructed as required by section 182; whether there was a flue-pipe over the stage, as required by section 184; and whether the building was provided with automatic sprinklers, as required by section 186, were all matters that could be readily seen, and there is no averment in the bill that complainant did not know, when he executed the lease, the facts in relation to the construction of the building. No covenant on the part of the lessor can be implied that the lessee should be permitted to use the demised premises in violation of the building ordinance. Under the ordinances, set forth in the bill as exhibits thereto, if the closing of the theater of the complainant by the city of Chicago was rightful, it was rightful because the complainant had used and was using movable scenery in a building so constructed that the use of movable scenery therein was prohibited by the building ordinance, and gave the city authorities the right to close the theater. We do not think that the disturbance of the lessee’s enjoyment of the demised premises thus occasioned can be held a breach of the lessor’s implied covenant for the quiet enjoyment of the demised premises by the lessee, or that it gave to the lessee any legal claim against the lessor for the rent paid in advance, or for damages sustained by him by reason of the interruption of his business by such closing.”
In our opinion the bill did not state a case authorizing the relief prayed in a court of equity, and the judgment of the Appellate Court affirming the decree of the circuit court in sustaining the demurrer and dismissing the bill for the want of equity is affirmed. Judgment affirmed.