146 Ill. 460 | Ill. | 1893
delivered the opinion of the Court:
No complaint is made in the argument in regard to the ruling of the court in the admission or exclusion of evidence. The court, however, gave one instruction on behalf of.the plaintiff which is claimed to be erroneous. The instruction was substantially as follows: 6
“The court instructs the jury, that if they believe, from- the evidence, that the defendant Neagle signed the bond offered in evidence, as surety for Simon Stafford, and they further believe, from the evidence, the defendant Stafford, deceased, agreed with the plaintiff to pay the ground rent and taxes for the premises described in the bond, in consideration of being allowed to occupy the said premises, and if the jury further believe, from the evidence, that at the time of restitution, as shown by the evidence, there was any ground rent or taxes due and unpaid for the said premises, or that the plaintiff had prior thereto paid any ground rent or taxes that ought, as they believe, from the evidence, to have been paid by the defendant Stafford, then they should find for the plaintiff.”
It is claimed in the argument, as the bond upon which the action was brought contained no provision in regard to the payment of taxes, the direction to the jury in regard to plaintiff’s right to collect taxes is erroneous. Upon looking into the record it appears that Kelly, at the request of Simon Stafford, purchased a building located on a leased lot, and agreed with Stafford that the latter might have the possession and use of the property upon the payment of the rents and taxes as the same became due according to the terms of the ground lease. Stafford entered into possession of the premises under this arrangement, but failed to pay the rent and taxes as agreed upon, and Kelly was obliged to pay, according to the terms of the ground lease, rent and taxes amounting to over $1000. The condition of the bond upon which the •action was brought required Stafford to prosecute his appeal with effect, and pay all rent then due and that might become due before the final termination of the suit, and all damages and loss which the plaintiff might sustain by reason of withholding the premises in controversy. -It is true the condition of the bond does not require Stafford to pay taxes, in terms, but it does require him to pay all rent due and that may become due, and as the taxes constituted a part of the rent which Stafford had agreed to pay, he and his sureties were liable for the taxes. The ground lease required the taxes to be paid as they matured, as a part of the rent, and so far as appears the taxes were as much a portion of the rent as the monthly sum, $43.75, required to be paid in money. For a failure to pay the rent, the taxes, and $43.75 monthly, the judgment in the action of forcible detainer was rendered, and the taxes and monthly payment of $43.75 constitute the rent named in the bond. We do not, therefore, regard the instruction erroneous.
It is also suggested in the argument that the Statute of Frauds may be availed of as a defense. Stafford obtained the possession of the premises from Kelly under an agreement to pay the rent. It was not collateral to any agreement made by Kelly, but, on the other hand, it was an original undertaking on his part, and the Statute of Frauds has no application to such an agreement. Besides, the Statute of Frauds was not pleaded or relied upon in the circuit court, and it is too late now for the first time to claim the benefit of the statute on appeal here.
We think the judgment of the Appellate Court was correct, and it will be affirmed.
Judgment affirmed.