120 Ill. App. 516 | Ill. App. Ct. | 1905
delivered the opinion of the court.
Appellee pleaded the general issue to the plaintiff’s declaration in assumpsit and also filed two special pleas setting up the alleged verbal agreement reducing the rent for the last two years of the term. These pleas were not demurred to, and it is claimed that their legal sufficiency was therefore admitted. The replication filed by appellant is, as appellee’s attorneys suggest, de injuria and tenders an issue of fact on the special pleas. It sets forth that plaintiff “of his own wrong and without the cause or causes in his said last mentioned first and second special pleas alleged and in each and either of them, committed the said trespass in manner and form.” complained of, and prays that this “may be inquired of by the country.” In form the replication would be appropriate in an action of trespass. Subsequently plaintiff’s attorneys filed a notice that on the trial the plaintiff would introduce evidence that no note or memorandum in writing was ever- made of the alleged agreement set forth in defendant’s special pleas, although not to be performed within a year, and that it was therefore obnoxious to the Statute of Frauds. There is -no warrant for any such notice, and it must be deemed void. The statute provides for notice " by the defendant under the general issue in lieu of pleading special matters of fact (B. S., chap. 110, sec. 29), but we know of no authority for its use as here employed. As a general rule the Statute of Frauds must be pleaded if relied on, the reason being that a contract within the statute is not absolutely void but voidable at the election of the party against whom it is sought to be enforced. It is true that it may be relied upon under the general issue upon the evidence without pleading it where the declaration contains only the common counts (Beard v. Converse, 84 Ill. 512-516), but in the case before us that defense could not arise under the plaintiff’s declaration. It might perhaps have been available in answer to the special pleas which set up a verbal contract claimed to be obnoxious to the statute. The defense is not made, however, in any available form under the pleadings and must be deemed not an issue in the case.
The more serious question is whether it was error to allow the defendant to introduce evidence of a parol agreement, which it is claimed changed, altered and modified a written lease under seal. The rule is not seriously questioned that such a contract under seal cannot be so modified. Alschuler v. Schiff, 164 Ill. 298. In this case there is no claim that the lease was entirely set aside. The claim is that by parol agreement it was changed in one of its most material provisions fixing the amount of the rent to be paid by appellee. It is, however, urged in behalf of the latter that the contract was executed and not executory, that the ley.se as modified by the alleged verbal agreement had been fully performed when the suit was brought and. is no longer a living contract. This raises questions which were, we think, properly submitted to the jury; first, whether such verbal agreement was in fact made and if so, second, whether the provisions of such agreement and the terms of the written lease as modified by it were in fact fully carried out and performed. Had appellant sued from month to month or at any time before the expiration of the lease or before accepting payment under it as modified by the alleged verbal agreement, the evidence of a verbal alteration would not have been admissible. The jury had before it the evidence relating to the alleged parol agreement and the alleged consideration for it and the payments alleged to be made under it. The evidence was conflicting, and we must regard their finding as conclusive in those respects. There is evidence tending to show appellant’s agents were denying the alleged verbal agreement, and that they received the payments made by appellee with frequent statements that they were only accepted on account. Yet the fact remains that if the jury believed the alleged oral agreement to have been made as contended by appellee and that the amounts due under it were fully paid and accepted by the lessor without other action until the whole contract as'alleged to have been modified ivas fully executed, we do not feel at liberty to say that their finding is not warranted by evidence, even though as jurors we might have reached a different conclusion. We are not to be understood as intimating that the acceptance of a less sum than the amount due under the lease would have the effect to discharge the balance. But if appellee actually sent checks for the reduced amount with the specific statement from month to month that such amount was sent in full payment for the rent of such months, as the jury seem to have found, the acceptance of the checks under such conditions implied a compliance with the terms upon which they were sent. Appellant could not otherwise retain them without the concurrence of the payor. Ostrander v. Scott, 161 Ill. 339-345.
What we have said substantially disposes of material questions presented in the briefs. For the reasons indicated the judgment must be affirmed.
Affirmed.
