159 Ill. 526 | Ill. | 1896
delivered the opinion of the court:
This is assumpsit for rent due on a lease, and the first question for solution is, was the evidence offered by the defendant under the stipulation and excluded by the trial court, competent to prove that the lease- was terminated, canceled or surrendered before the rent accrued? The lease was an instrument under seal, and appellant sought to show that fourteen months before the end of the term created by it, it was canceled by the parol agreement for a new lease for a term of six years. The Statute of Frauds must be regarded as pleaded under the stipulation. In Loach v. Farnum, 90 Ill. 368, it was said by this court: ' “It is a well settled rule of the common law that an executory contract under seal cannot be modified or varied by a parol agreement, and the same doctrine has frequently been announced by this court,”—citing Baker v. Whiteside, Breese, 174; Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 id. 43; Barnett v. Barnes, 73 id. 217. See, also, Baltimore and Ohio and Chicago Railroad, Co. v. Illinois Central Railroad Co. 137 Ill. 9. This is not a case’where the parol agreement had been executed by the parties, and it does not therefore come within the exception to the rule as stated in Worrell v. Forsyth, 141 Ill. 22. The testimony as offered ^did not tend to prove any actual cancellation or surrender, but only an oral agreement that the new lease should take the place of the old. It follows, therefore, that the proposed testimony was incompetent to prove a termination, cancellation or surrender of the lease. This lease must therefore be regarded as in full force until the expiration of the term on August 31,1894, and the plaintiff was entitled to recover the rent accruing under it, unless the testimony offered by the defendant would have tended, if admitted, to establish a cross-demand against the plaintiff under the stipulation.
Counsel for appellant has argued his case here principally upon the theory that the evidence, if admitted, would have shown that the alleged new lease became substituted for the lease sued on, or would at least have established a surrender of the lease and an acceptance by the landlord. But we have seen that the testimony as offered was not admissible for this purpose. Nor would it have tended to establish a demand against the plaintiff which he could recover in an action at law.
It is not necessary here to consider whether or not there was any such possession and part performance under the alleged verbal lease which would, in equity, take the case out of the Statute of Frauds. This is an action at law, and must be so treated in dealing with appellant’s defense under the stipulation, as well as with the case made by the plaintiff. It is well established that part performance of a contract not enforcible because of the Statute of Frauds, does not operate, in an action at law, to take the case out of the statute. (Creighton v. Sanders, 89 Ill. 543; Wheeler v. Frankenthal, 78 id. 124; Warner v. Hale, 65 id. 395; Chicago Attachment Co. v. Davis Sewing Machine Co. 142 id. 171; Dougherty v. Catlett, 129 id. 431.) Nor could the defendant recover damages at law for the' breach by the plaintiff of the alleged verbal contract, for the reason that the statute is a complete defense- to any such action. (Butcher Steel Works v. Atkinson, 68 Ill. 421.) “The well settled rule of law is, that a verbal contract within the condemnation of the Statute of Frauds cannot be enforced in anyway, either directly or indirectly, and cannot be made either the ground of a demand or the ground of a defense.” McGinnis v.Fernandes, 126 Ill. 228.
The testimony, therefore, offered by the.plaintiff, which tended to prove a breach of the oral contract for the six-year lease, and that the defendant had sustained damages by reason of such breach, was inadmissible.
It will be noticed that the case does not come within the rule that a party may recover money paid, or for services rendered or improvements made, in pursuance of the provisions of a contract which the other party has repudiated or refused to perform under the shield of the statute. That such recoveries may be had has been decided in many cases. (Butcher Steel Works v. Atkinson, 68 Ill. 421; Frazer v. Howe, 106 id. 563.) In the case at bar there was no offer to prove that any improvements had been made on the leased premises, any services rendered or any money paid out in pursuance of the oral contract for which appellant would have a right to recover at law. The expenditure of $1500 for an electric fan would not come within the rule, for it was not shown to have been put in at the request of appellee or in pursuance of the contract, or that it became attached to the building as part thereof, so as to become the property of. appellee. The same may be said of the expenditures for scenery, etc. Appellant did not offer to prove that he had decorated the building or incurred any expense therein, but only that he had become obligated to another on a contract to have the same done. It did not appear from any testimony offered, that any of the expenditures which appellant sought to have set off against the rent were provided for by the verbal contract. Clearly, appellant could not recover moneys which he had voluntarily expended in the purchase of personal property for his own benefit, and which the contract on which he claims to have relied did not require him to purchase, even although he would not have purchased it had no such contract been made. He was bound to know the contract was not en-forcible, and if he chose to rely upon it and make expenditures which compliance with it did not require him to make, we know of no rule of law that would compel the other party, simply because he repudiates a contract which is not légally binding on him, to reimburse his co-party for such expenditures. Even in equity, in order to take a case out of the statute upon the ground of -part performance of a parol contract, it is indispensable that the acts done should be clear and definite and referable exclusively to the contract. Worth v. Worth, 84 Ill. 442; Pickerell v. Morss, 97 id. 220.
We are of the opinion that the trial court did not err in excluding from the jury the testimony offered by appellant nor in instructing the jury to find for the plaintiff. The judgment of the Appellate Court is affirmed.
Judgment affirmed.
