44 Ill. App. 22 | Ill. App. Ct. | 1892
Counsel for appellants urge here in support of their demurrer:
1st. That there is no allegation that defendants have attorned.
There was no need of such an allegation. A lessor may assign the rent to become due upon a lease without assigning the reversion. Crosby v. Loop, 15 Ill. 625. The assignment set out in the declaration amounts only to an assignment of the rent, but it was entirely sufficient and became operative for that purpose. Demarest v. Willard, 8 Cow. 206. The assignee of rent to come due may maintain an action therefor in his own name. Willard v. Tilman, 2 Hill, 274; Van Rensselaer v. Read, 26 N. Y. 558; Demarest v. Willard, supra; Taylor, Landlord & Tenant, Sec. 426. This doctrine is asserted arguendo in Potter v. Gronbeck, 117 Ill. 404. See also Scott v. Lunt’s Adm’r, 7 Peters, 595.
2d. It is urged that there is no allegation that defendants were notified of the assignment before suit, or that any demand ivas made for the rent. The rent being legally assigned, the assignee may recover it unless without notice of the assignment defendants have paid it to the original lessor. If they have done so, it is a matter of defense. The right of action accrued to the assignee of the rent U2ion the rent becoming due without demand being made for its 2iayment.
3d. It is said that the assignment set up in the declaration is a conditional one, and it is not averred that the assignment was in force at the time suit was brought. The averment in the declaration that the assignors are still indebted to said plaintiff, to wit, in the sum of $5,000, is, we think, sufficient answer to this objection on general demurrer.
4th. Apjiellants insist that covenant is not the proper form of action, - because the declaration does not show by averment that the instrument sued on is under seal.
While, as a general rule, the declaration should state that the contract sued on was under seal even where the terms “ covenant ” or “ demised ” are used, for these words do not import a seal, yet where to describe the instrument words of art are used, such as indenture, deed or writing obligatory, which of themselves import that the instrument was sealed by the party, the declaration will be good without averment of sealing. 1 Saunders, 291, note.
This declaration avers that by a certain indenture or lease, defendants did covenant, etc. Therefore, while it would be more accurate pleading to aver a seal, yet this declaration is not bad/ unless the words “ or lease ” neutralize the word “ indenture” under the rule which takes the pleading most strongly against the pleader.
5th. It is contended that the declaration shows that the terms of the original lease were changed by parol agreement and therefore covenant will not lie.
This objection is well taken and so we need not definitely decide the preceding one. As will be seen by reference to the declaration, it avers that afterward and on the 26th day of September, 1888, it was covenanted by and between the said Bridge and defendants, that the term of said demise should be extended, upon the same terms and conditions as to amount and payment of rent, for the period of two years, that is, until the first day of January, 1892. The rent sued for accrued after the end of the term of the original lease, and under and during the extension of term agreed upon. This extension is not shown to have been under seal. We have already seen that averring that it was covenanted so and so, does not import that the contract was under seal. In order to maintain covenant it must appear from the declaration by direct averment that the instrument or contract was under seal, or technical words which import that it was sealed must be used to describe it. 1 Chitty on Plead. 378. The pleading failing to show that the extension contract was under seal, it must be concluded that it was by parol.
“ Where a contract under seal has afterward been varied in the terms of it by a subsequent parol contract, made on a new consideration, such substituted agreement must be the subject of an action of assumpsit, and not of covenant.” The pleading shows that the contract under which the rent for which plaintiff is suing is a parol contract, and it follows that assumpsit and not covenant is the form in which the action must be brought.
Therefore the court should have sustained the demurrer to the declaration, and for the error in overruling the same, the judgment must be reversed and the case remanded.
lieversed and remanded.