140 Ill. 531 | Ill. | 1892
delivered the opinion of the Court:
On the 10th day of September, 1886, appellee leased to appellants the following described property, to-wit, “the building known as number one hundred and forty-two (142) South Halsted street,” the lease providing that said building was “to be occupied for a music store, and for no other purpose whatever.” The term was to be from September 15, 1886, to April 30, 1890, the rent for the whole term to be $2827.50, payable monthly, in installments, on the first day of each .month. These installments for the months of July, August and September, 1888, being unpaid, appellee, on October 13 following, demanded payment thereof from appellants, and gave them notice that unless the same was paid on or before the 20th of that month their lease would be terminated. On the 22d of the same month, in pursuance of that notice, this suit in forcible detainer was begun before a justice of the peace, the complaint being in the usual form in that action, except that it read, “Michael Graham, by W. D. Kerfoot & Co., complains,” etc., and is signed, “Michael Graham, by W. D. Kerfoot & Co., agents.'” The defendants failed to appear before the justice of the peace, and judgment was there entered against them for the possession of said premises. On appeal, to the circuit court of Cook county the case was tried without a jury, and judgment again rendered for the plaintiff, and that judgment has been affirmed by the Appellate Court.
Appellants insist here, (on the same brief and argument filed in the Appellate Court,) first, that the circuit court erred in not dismissing the suit for want of a proper complaint. This contention is based upon the assumption that under our statute forcible detainer can only be begun by filing a complaint in the name of the party claiming possession, in his own proper person, hence it is said the complaint in this case, being by an agent, gave' the court no jurisdiction. The position is without force. There is nothing in the present statute requiring the complaint to be sworn to, or even signed by the plaintiff. The language is, “on complaint in writing by the party or parties entitled to' possession of such premises, being filed,” etc. The complaint is a mere pleading, and no reason is perceived or suggested why it should be made by the complainant in person, rather than by an agent or attorney.
It was shown on the trial that on the 16th day of December, 1889, while the suit was pending in the circuit court, the attorney for the appellants gave the key to the leased premises to the attorney for the appellee, and afterward paid him a small amount of rent for the month of December, 1889.
Appellants’ second contention is, that this terminated the ■plaintiff’s right of action, on the principle that if one releases lis cause of action between the commencement of a suit and the final trial, he can not afterward recover a judgment for ■costs. In this case the evidence not only fails to establish that the key and rent were received in discharge of the plaintiff’s cause of action, but directly the contrary is shown. The key was surrendered to avoid the giving of an additional appeal bond, counsel for defendants below stating that the bond then on file would cover rent to that time. They did not treat that transaction as a settlement of the suit, but defended at the trial upon the ground that when plaintiff demanded rent, and gave notice to terminate said lease for the non-payment ■of rent, none was due.
It is finally insisted that the circuit court erred in holding against appellants on said last named defense. The theory upon which it is based is, that they were evicted from a part ■of the leased premises by the plaintiff in the month of June, 1888, and were thereafter not liable for rent. It is not claimed that there was any interference with their use and enjoyment •of the building described in the lease, but they claim that they .also had, under their contract of leasing, a right to the free use of a passage-way north of said building, over the same lot, from the front to a yard and out-buildings in the rear, which they were deprived of, or obstructed in the use of, by the plaintiff. The lease does not in terms convey any right to ■such a passage-way, nor does it give to the tenants any right whatever to that part of the lot in the rear of said building. All that can be claimed, therefore, is, that by construction the lease conveyed so much of the lot on which said building •stood as was necessary to the complete enjoyment of the building for the purpose for which it was rented. Whether said passage-way, or any part of the lot in the rear, was so necessary, and if so, whether that right had been so far interfered with as to amount to an eviction, are questions of fact, upon which the decision of the Appellate Court is final.
It was said in Hayner et al. v. Smith et ux. 63 Ill. 435, after citing cases: “The question, therefore, of eviction or no eviction depends upon the circumstances, and is in all cases to be decided by the jury.” (See, also, Lynch v. Baldwin, 69 Ill. 210.) Even on the evidence produced by the defendants them- , selves it is impossible to see how, under the law announced in-■the foregoing and other decisions of this court, they could re-main in possession of the premises and refuse to pay rent.. ■At most there was but a constructive eviction, which might' .'have justified an abandonment of the premises, but would not defeat an action for rent.
In any view of the ease the decision of the circuit and Appellate Courts is right.
Judgment affirmed.
