82 Ill. App. 178 | Ill. App. Ct. | 1899
Lead Opinion
delivered the opinion of the /Court.
The declaration in this case contains but one count, and that is special upon the written lease thereto attached. It is for the demise of Store Ho. 86 Fifth avenue, Chicago. Among other things it is provided in said lease as follows :
“ It is agreed that the party of the first part (appellee) shall divide the two stores eighty-four (81) and eighty-six (86) Fifth avenue, by a suitable partition, and will repair and decorate the interior of said store number eighty-six (86) Fifth avenue.” Said lease is a sealed instrument," and is signed and sealed by appellant. The other signature and seals are as follows, viz.:
“ The Newspaper Co., [Seal.]
per Harrison Bros., agents. [Seal.]”
The lease was for the term of three years, and the term was not to commence at the time the lease was made, but some twenty days thereafter. Appellant testified that the last he heard about the store was in October, 1894, more than three years prior to the time this judgment was entered. The judgment was entered by confession, under a power of attorney contained in said lease, and without notice to appellant, who promptly moved to set the judgment aside. One of the pleas which he was permitted to file, set up lack of mutuality because appellee was not bound by said lease. Appellee’s demurrer to such plea was sustained, and properly so, as to that question, because the declaration averred that appellant occupied said store during the entire term of said lease.
When the lease was offered in evidence on behalf of appellee, its admission was objected to because it was not shown that there was any authority to sign it, and because it was void under the statute of frauds. In the propositions of law submitted to the trial court, the same questions were presented, and afterward preserved in the motion for a new trial and in the assignment of errors.
The covenants in the lease are mutual and interdependent. It contained the covenant above quoted as to repairs and interior decorations to be done and made by appellee. The evidence tends to show that that covenant was not kept by or on the part of appellee. The lease, as shown, purports to be under seal, and to be executed by a corporation (appellee), by a firm as agents. There is no evidence to establish the liability of appellee to perform the covenants of said lease. The lease lacks the necessary element of mutuality. ■
The testimony does not. show any ratification of thó lease, as a covenant obligation, by appellee. Any ratification must be in writing. Ingraham v. Edwards, 61 Ill. 526.
There is no claim made that it was so ratified.
There is no statement or recitation in the lease, nor is there any averment in the declaration that Harrison Bros, were the agents of appellee, or that they had any authority to execute said lease. Heither is there any testimony showing such authority. There is nothing in this case upon which such authority can be claimed, except the signature in the form quoted. That is not sufficient when objected to in apt time, and when it is not in any manner waived.
It is provided by the statute on frauds and perjuries (Ch. 59, Sec. 2), that “ no action shall be brought to charge any person upon any contract * * * (such as the lease in question), unless such contract or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.”
It is not contended on the part of appellee that there was any such authority, in writing, as required by this statute. Appellee is to be charged by the lease as to its covenants to repair and decorate, the same as appellant is to be charged thereby as to his covenants to pay rent. It is not necessary to determine whether this lease would be binding upon appellant in case there was no covenant to be. kept on the part of appellee, in consideration of which, in whole or in part, appellant was to pay rent. This lease, under the facts and circumstances here presented, is wanting in the necessary requisite of mutuality.
The covenant in the lease to repair and decorate, and the covenant of appellant to pay rent, are mutual and dependent. Lunn v. Gage, 37 Ill. 20, 28.
The covenant to repair and decorate is within the statute of frauds as completely as is the covenant of appellant to pay rent. O’Leary v. Delaney, 63 Me. 584.
Appellant was liable for the rent for all the time he occupied the premises at the rate fixed in the lease. But that he has paid in full. This leasing was, in a court of law, a tenancy from month to month. Blake v. Kurrus, 41 Ill. App. 562; Creighton v. Sanders, 89 Ill. 543.
Appellant might legally terminate the tenancy at the end of any month. (Donohue et al. v. Chicago Bank Note Co., 37 Ill. App. 552.) He did so at the end of the second month. Part performance does not, in a court of law, take the case out of the operation of the statute. Chicago Attchmt. Co. v. Davis S. M. Co., 142 Ill. 171.
There are numerous points urged in the briefs and arguments which we do not deem it necessary to discuss. The declaration avers that appellant occupied said store for the full term named in said lease. There is no .present claim that this is correct. The evidence is undisputed and conclusive, that appellant occupied said store but two months, and that he paid the rent in full therefor. Appellee must, then, recover in this case, if at all, simply and only upon the covenant of appellant in the lease, to pay rent. This, as we have endeavored to show, it can not do.
The judgment of the Circuit Court will be reversed, and •the cause remanded.
Reversed and remanded.
Concurrence Opinion
I concur that the judgment must be reversed and the cause remanded, but not upon the grounds or for the reason stated in the majority opinion.
The judgment without a declaration to support it can not stand. Tucker v. Gill, 61 Ill. 236.
If a declaration were ever filed in the case, the abstract does not show, it or refer to where in the record it may be found, and the rule is uniform, and has been many times announced, that an appellate tribunal will not hunt through a record to find something that the abstract does not refer to.