| Ill. App. Ct. | Jun 13, 1898
delivered the opinion of the court.
It is contended by counsel for appellants that the answer of appellants to the original bill should have been taken as true for want of any replication thereto. The decree, however, recites that the cause came on to be heard on original bill, answers and replications thereto, and upon cross-bill, answers and replications thereto. These recitals of the decree are conclusive as to there having been replications, and the certificate of the clerk can not be taken to contradict this recital. Brown v. Miner, 128 Ill. 148" date_filed="1889-04-05" court="Ill." case_name="Brown v. Miner, Frost & Hubbard">128 Ill. 148.
Counsel also contend that the receipt of the check for §100 in payment of August rent upon the 1st day of August, when appellee’s agent was informed by appellants that they had subleased to Hrs. Hopson, was in effect a waiver of any right of objection to such subletting.
We can see no merit in this contention. Appellee had an undoubted right to receive the rent stipulated for in the lease, while appellants had no right to sublet without consent first obtained of appellee. That the taking of the rent paid in accord with the terms of the lease should operate to ratify a subleasing, which was in breach of the covenants of the lease, is wholly untenable.
By their action in surrendering the "possession of the premises to another for the carrying on of a business other than that of a piano salesroom, and by subleasing to Mrs. Hopson without the assent of appellee, all rights of appellants under the lease were forfeited at the time the notice was served by appellee. They, therefore, can not be heard to complain of the disposition of the money in the receiver’s hands which was ordered by the decree.
The decree is affirmed.