37 Ill. 19 | Ill. | 1865
delivered the opinion of the court:
Had appellant a right to abandon' the contract and remove from the premises after taking possession, under the lease ? The grounds relied upon are, that appellee had failed to erect a horse shed, a side track, or paint the house, according to his covenant in the lease. It is insisted that, without these improvements and repairs, the property was useless as a hotel, and of little or no value; but with the improvements, the house could have done a good business. The abandonment of the premises is sought to be justified upon the.ground, that the performance of these covenants were conditions precedent, and a failure by the lessor to make them, released'the lessees from their covenants.
The covenants referred to are these:
“And it is further covenanted and agreed by and between said parties, that the said party of the first part shall paint the outside of the house situated upon said premises, and known as the Brighton House; also to construct a suitable horse shed to occupy the position of the former one, and also to cause to be put down a side track - upon said premises.”
There is no time specified when these acts shall be performed, nor does it appear from the lease that they were to precede other acts to be performed by either of the parties. It will not be doubted that the parties supposed that these improvements and repairs were necessary for the better enjoyment of the property for the purposes for which it had been designed. If necessary for the enjoyment of the property as a hotel, it must be intended that they were designed by the parties for the benefit of the lessee during the term.' hi or can we, for this reason, suppose, that if it was only expected that it would be made at or near the end of the term,that these covenants would have been inserted in this lease. It was manifestly to enhance the value of the property as a hotel, during the term, that they were to be made, and if so, it would seem to follow, that it was designed they should be made at least in a reasonable time.
The true rule for construing covenants is stated in Davis v. Wiley, 3 Scam., 234. It is there said, that “ covenants are to be construed to be dependent or independent, according to the intention of the parties, and the good sense of the case; and that technical words should give away to such intention.” Testing these covenants by this rule, we must hold that they were mutual and dependent. And there being no stipulation that they were to be performed by appellee before appellants entered into possession under the lease, and as they were necessary to the more profitable enjoyment of the lease, and it was no doubt so understood by the parties, they should have been performed in a reasonable time, and if they were not, appellee had no right to recover. Copps v. Smith, 3 Scam., 177; Baird v. Evans, 20 Ill., 29. Again, in the case Mecum v. The Peoria and Oquawka Railroad Co., 21 Ill., 553, it was held that “ courts will not, and ought not to construe covenants and agreements, as independent, and still enforce a performance by the other party, unless there is no other mode of construing the instrument, and unless it clearly appears to have been the deliberate intention of the parties at the time the instrument was executed.” In this case, there is nothing to show, or from which it can be inferred, that appellants should occupy the premises, at the stipulated rent,in the condition they were when leased, and that appellee should have the entire term within which to make the improvements.
It would be a more rational and natural construction to say that it was designed that they should be made before appellants entered. But they having gone in without insisting upon them as precedent, we must suppose that they were understood to be mutual, and to be performed in a reasonable time. To hold .that appellee had the entire term to make the improvements and repairs would be so manifestly unjust, that we cannot imagine that the parties would deliberately enter into such an agreement. But if such was their purpose, they have failed to express it in the lease. Had appellee made the improvements before appellant abandoned the property, it would have been in time, as that would have been the construction put upon the covenants by the parties themselves.
We said, in Wright v. Lattin, (decided at the present term,) that it may be, if the landlord covenants to repair before the term commences, and fails to do so, the tenant might refuse to enter upon the premises. But having entered under the lease, and received possession, he cannot abandon the lease, and refuse to pay rent, because of the breach of that or any other covenant, except for quiet enjoyment. If the' landlord fails to repair, according to his covenant, the tenant may recoup the amount of dam ages, thus sustained, from the rent, or he may sue upon the covenant.
It then follows, that as appellants entered upon the term, and enjoyed the premises from some time in the month of April, until in November, 1861, they became liable to pay rent for the time they thus occupied the premises. But they were also entitled to recoup all damages which they sustained by reason of the repairs not having been made by appellee. By appellee’s second instruction, the jury were informed that such were their liability and their rights under the lease, and the jury seem to have acted under this instruction. Appellants seem to have been in possession for between six and seven months, yet the jury only found them liable to pay $275, less than half of the rent stipulated to be paid, by the terms of the lease. The jury could not have arrived at this conclusion had they not deducted the damages sustained by reason of the repairs not having been made, as they were authorised to do, under the instruction. We think the instructions fairly presented the law of the case to the jury, and that the evidence warranted their finding. We perceive no error in this record, and the judgment of the court below must, therefore, be atfirmed.
Judgment affirmed.
