*1 LIPPMAN, RICHARD A. HARRELL, Plaintiff-Appellant, v. WALLY
Defendant-Appellee. Fourth District No. 12745 Opinion filed June
BARRY,J., dissenting.
Hagin Harper, Champaign, appellant. Watson, Champaign, appellee.
Richard J. Mr. PRESIDING opinion ALLOY delivered the the court: JUSTICE Plaintiff Richard A. Lippman appeals from a the Circuit County Champaign County (following trial) a bench in favor of Harrell, Wally assertedly defendant in an action to recover damages alleged caused defendant’s breach of contract.
From the appears record it defendant Harrell sold $5,000 Lippman gave a trailer October Lippman keep (a fishing lake) on park the trailer trailer without payment of rent until March 1971.
At the trial into the testified entered orally, agreement, by defendant addition to the written sale present in its permitted keep of which he was to be terms Lake, a mile outside located about Kaufman’s location caUed IHinois.Plaintiff testified city limits of Champaign, of October. No week the second his wife into moved summoned following difficulty April until the when arose previous upset to his office. Defendant was *2 caUed the that he Plaintiff said evening plaintiff had caUed the sheriff. his foot from about one sheriffbecause a bonfire had been started a lot noise. making that young people they and were a letter later, 12,1969, stated he received May plaintiff A on few weeks exhibit, an which defendant, admitted as offered and from was his mobile that move and to remove plaintiff days informed he had charged trespassing he home and or else would equipment, had plaintiff that the provisions a the same. The letter Usted number place attempted find another aUegedly complied Plaintiff with. trailer its was of the size park his traüer but unsuccessfulbecause age. 24, 1969, plaintiff plaintifFs On cut off. was June Plaintiff on, turn it back was never done.
asked defendant to but utilities and that the agreement required pay that that he stated so that far He stated charge. the water without provide defendant would he out of that moved knew, He stated avaüable. as he other water was not after, that he testified Plaintiff turned off. trailer water was day $140 his and wife found a couple accommodations which cost the month. Plaintiff agreed following also denied that had he conditions insurance; to, is, agreed UabUity defendant asserted he had that to obtain clean; keep grounds spring. and to find another source of water Plaintiff plaintiff álso testified that had claimed that never nuisance, plaintiff drove too fast while on that was other neighbors than the he called that time the sheriff.Plaintiff also asserted used destroyed also the defendant’s mail box one he never signs. Plaintiff admitted he a tank that when first moved into gas but provided subsequently Company he asked IllinoisPower put their his line to trailer. When was asked if he could not also he Avenue, along Springfield a water from connected to line came, which the that so as he gas plaintiff line stated far knew there was finally no water. He he He also investigated admitted never cost. admitted sit permitted property, his second car to on defendant’s kept but he it off the main road. operated
Defendant testified that he lake. At the time the fishing into, plaintiffagreed keep contract was entered he stated that his pay plaintiff clean utilities. Defendant told the he own needed all the had water he own his use and he needed to run his concession the summer. plaintiff He told the he could use the water but spring, that he would his get then have to own He water. also stated that to get liability was insurance and had permission to use any premises, other other than where the trailer parked. He also testified the children started who plaintiff’s trailer, bonfire near as to whom the had called the sheriff, customers, were parents longer and their would no let them back come to the lake after the incident. Plaintiff never furnished an insurance policy permitted grown and also up area to be in weeds 3M to 4 high, feet he stated. He stated that had large caused sign to be knocked car parked down that he left his old on the road. also, testified, He that another source of water as the just gas was available was. He also stated spaces that there other trailer available few blocks from where the trailer was located. Defendant said that he permitted plaintiff to, to use the water for the he had agreed but turned it off as to plaintiff because he it and that this was needed done pursuant to his agreement plaintiff. with the
Defendant also stated that he kept could be the property without rent because wanted he someone to live the lake during the winter. rental space purchase included in the price. *3 In plaintiff’s complaint, plaintiff alleges that had defendant agreement by breached the serving upon the him notice to remove the by *10,000 shutting off his in supply. water He asked for damages because his trailer has been rendered uninhabitable that he has by incurred will in the incur costs living future reason of this asserted replied breach of contract. in his that Defendant answer he did not into plaintiff enter such with but he was forced to order plaintiff to premises plaintiff premises vacate the cluttered the up parts blocked access to property other of defendant’s and interfered with the annoyed business and harassed and his customers. and,
The trial court of found favor defendant in written time, memorandum filed at the trial judge parol stated because of the rule, evidence the court did not to the oral agreements need consider even though objected the evidence was not to at time of its introduction. considered, The court found that if evidence were there preponderance would be party no of the evidence as to which to believe and that necessary therefore was find of defendant. The trial to favor court did stated the mere notice to not constitute a constructive quit eviction of defendant.
We believe the oral as between the was pertinent and that the trial court and considered such should allowed However, trial if evidence. court also stated that even he did consider
311 We with plaintiff. agree of such he could find favor evidence incomplete in the areas of discussion contract was conclusion.The written exactly in conflict plaintiff and defendant were testimony but the of fact conflictingquestion on this and the determination of trial court to, contrary weight manifest since is not to the adhered evidence. could, under provide
The failure to a tenant to water (1928), v. circumstances, (Allmon Davis eviction. constitute constructive Plaintiff, however, first to App. 350.) required 248 Ill. was establish (Slaughter v. obligated defendant the water. supply was to Johnson 417.) agreed (1906), App. 128 Ill. Defendant testified his contention spring. proving The burden contract, Illinois plaintiff. (Continental a term was rested on Ill. (1960), App. National Bank v. National Co. 27 2d 169 Casket 853.) judge N.E.2d trial that if he all the oral stated consider to, testimony, there objected preponderance which was not would be plaintiff prove party as to which to believe. Since the burden was on the preponderance promised the defendant properly the trial provide occupancy, water for the duration of the court found in this issue. favor of defendant on sent issue the letter second raised charged him telling days get defendant he had 30 out or he would be view was trespassing constituted a constructive eviction. Even the eviction, taken that the notice to constituted constructive facts, questionable plaintiff’sposition under the could be sustained premises since tenant must surrender or abandon the before possession there could Since in his be a constructive eviction. case continued weeks, it occupy at least for a of two is considered premises, Ill. (Gillette (1972), App. a waiver to v. Anderson abandon. 149.) case, In instant N.E.2d property his newly purchased could leave trailer on defendant’s did not years for three rent. When moved out he without kept air it out of take trailer. He removed the conditioner it in the though plaintiff trailer for awhile but later reinstalled trailer. Even he was personally getting abandoned still benefit Plaintiff, premises. his trailer still remained on the since therefore, and there has been no possession had not surrendered *4 constructive eviction. given only
We to as passing question attention to whether in 49 equivalent mere notice is eviction. As stated to to constructive (1970): Am. Landlord and Tenant §305 Jur. contrary, though authority is to “Even there that a mere notice to generally seems prevailing view * " * constitute an quit, tenant to is not of itself sufficient to ° # damages give eviction tenant Illinois, eviction, “necessary In an act it is to constitute constructive possession, the landlord do some act that disturbs the tenant’s deprive which amounts to a clear indication on the of the landlord to him to constitute enjoyment premises tenant the of the as demised to (Smith (1916), App. 375.) an eviction.” v. 200Ill. Defendant Bellrose premises did not in the instant case. plaintiff physically remove from We must also conclude that threat of defendant to institute criminal fact, basis in and did not proceedings against plaintiff legal as had no damages. and entitle constitute constructive eviction whole, On issue as review of the evidence as a the constructive eviction facts, resulting quit, really from the notice to not relevant under the as on the since the did not treat the notice such but remained date. if the past quitting for two weeks the so-called Even found, owing any damages eviction were is not clear that would be plaintiff. Plaintiff still owns the remains on defendant’s indicated, land. As did not sustain the burden of we have also showing that furnish shut-offdate. past defendant had stated, therefore,
For the Circuit Court of the reasons Champaign County affirmed.
Affirmed.
STENGEL, J., concurs.
Mr. BARRY,dissenting: JUSTICE In my view the judgment of the circuit court is contrary to the manifest weight of the evidence and to the principally law because of the misapplication parol evidence rule. Properly applied that rule makes it apparent as to which of the conflicting versions of the testimony must be accepted.
In the construction of an integrated requires rule only the exclusionof extrinsicproof to, modifies, which adds or alters obligations substantive expressed or implicit in meaning of the language (30 used. Am. §1016, 2d 1967Evidence at 151 seq. et Jur. (1967).) It does not authorize the exclusion of proof extrinsic circumstance attending the agreement by which the court can itself occupied by the'situation made, when the and thereby avail itself of the knowledge same parties possessed so as judge the correct application of language things described.
313 considering importance (1964).) 2d Contracts (17 Am. §272 Jur. ambiguous, is language where apparent proof extrinsic is more such that circumstance in considered even proof should be but not plainly is used language any meaning of which import (1964).) (The agreement Am. susceptible. (17 Contracts §272 Jur. below.1 appears sale of “house a a agreement handwritten here evidences but a a total sum of *5000which carport
trailer” also of cabana and paid. parties It further recites the expiring a may parking charge “trailer” be left on location at no 1,1971. March said cabana Nothing park is and bought. Finally, writing also contains curious ambiguous agreed by both may recitation “This unit be sold if parties.” added.) It it is clear (Emphasis ambiguous “unit” only, whether word refers all the “chattels” and It it bought paid imposes for. is curious the sense that on plaintiffs right purchased restraint of alienation as to items he —a restraint which from if appearances, all would follow the “chattels” even pursuant were to have them removed from location defendant’s notice to quit.2
Considering the foregoing understanding record rule, it plain becomes s testimony purport does not add, modify any or alter the It respect whatever. light sheds circumstances, as to attending and ambiguity, eliminates brings the meaning of the written words into clear focus. The cabana and
1 “Kaufman’s Clear Lake Springfield 2500 West Champaign, Illinois 61820 Oct.
Agreement 1-1968 House Y 45 Travelo Lippman 1957 —10 Lippman & Araceli Sold Richard —a *5,000 Oct. 15th Carport on or before & for a total Cabana Trailer with *4,000 *1,000 by Oct. 15th 4th Oct. may at same left by be the above Trailer all Parties that It is understood may charge. be sold parking This unit 1971 at no until March 1st location agreed by both Parties. Wally Harrell” Lippman A. Richard cabana, carport and purchase of the plaintiffs proof that some The record contains disposed all or having bank, been by privately him at a local financed trailer was default, interference, for, he became through he was items that defendant indication There repossessed and resold. then that the bank purchaser. carport, although realty attached to the were affixed to the might wrongly supposed. were not moveables as one awas Plaintiff attending IUinois, New York resident the University of and was purchasing housing. “the unit” temporary signing Before agreement, he was shown by defendant and observed was by electricity meter, served a separate gas, bottled supplied from inspection, defendant’s weU. He assumed from that the electricity his, them; and gas expenses paid later he altered the gas supply by making, expense acquiescence, with defendant’s city connection to the main. Both agree was intended plaintiff should live considering ordinary usages there and property purchased, implied such right may fairly writing from the *6 agreements any oral water, itself. Plaintiff denied that there utilities, insurance, weeds, anything writing. not in or else that was evidence, With this legally reasonably from the written inferable intended that the cabana and all, would never at right be moved was to have the then, occupancy ground 1, 1971, without rents March and could before, schooling the conclusion of his perhaps, facility, resell the approve occupant. new a housing arrangement Such plaintiff’s could reduce schooling expense. restraint in alienation acquires meaning under this construction. Defendant would land, be, legitimate interest in buyers, dwelling might who the new on his might expect to rents. require ground supports This construction also the conclusion that plaintiff acquired than expiring sooner 1,1971, well, March an existing, visible water from defendant’s was, indeed, and that defendant’s water shut-off actionable. An testimony examination against of defendant’s the same most evidence rule reveals that of must be It excluded from light meaning consideration. does not shed words, acceptance but requires proposition of the that there were many additional oral writing covenants undertaken besides in the those requires he admits to be in his own hand. fact alone doubtful against Nonetheless, issues should be construed him. he asserts insurance, contemporaneous existence of liability oral covenants for maintenance, find promised to an alternative water covenants, supply by It spring, April. is for of these violation none are his writing, implication, came asserts It wholly breach. insignificant that the oral covenants described his later given nothing written notice to quit, May under date of states plaintiffs duty even then about supply. to find an alternative And the notice to purport does not to be release of the restraint on restraint, anything “chattels”; alienation plaintiff’s value. of doubtful moveable have been might court, judgment the circuit enter I would reverse damages. for further determination the cause remand plaintiff Montgomery, I, of Cora Lee Adm’r of the Estate WILLARD G. MONTGOMERY INC., CENTERS, et Deceased, v. AMERICANA NURSING Plaintiff-Appellant, HARMON, D., al., Defendant-Appellee.) (THOMAS M. F. Defendants. — No. Fourth District Opinion filed June