Alexander v. Loeb

• Decision Date: 10 December 1907
• Citation: 82 N.E. 833,230 Ill. 454
• Parties: ALEXANDER et al. v. LOEB et al.
• Court: Illinois Supreme Court

230 Ill. 454

82 N.E. 833

ALEXANDER et al.

v.LOEB et al.

Supreme Court of Illinois.

Oct. 23, 1907.

Rehearing Denied Dec. 10, 1907.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; O. E. Heard, Judge.

Action by Solomon Loeb and others against Sigmund Alexander and others. From a judgment of the Appellate Court affirming the judgment of the circuit court, defendants appeal. Affirmed.James E. Cross (I. T. Greenacre, of counsel), for appellants.

Edward H. Morris, for appellees.

This is an appeal from a judgment of the Appellate Court affirming that of the circuit court of Cook county in an action of debt brought by appellees against appellants. The declaration contained a count based on section 2 of chapter 80, p. 1296, Hurd's Rev. St. 1905, which gives double rent against a party willfully holding over after the expiration of the term and the service of a written demand for possession. Two additional counts were based upon a covenant of the lease providing for the payment of $20 for each day the tenants should hold over after the lease expired.

In December, 1898, appellees leased the store floors and basement of the premises known as 561 and 563 Blue Island avenue, Chicago, to appellants, to commence January 1, 1899. A controversy arose over the period when the lease terminated, which was settled by a decree in chancery entered January 20, 1902, finding that the term expired December 31, 1900. The lease was executed in duplicate, and the only difference between the two copies was that appellees' provided that the term should end in 1900, while appellants' copy made it 1901. In the body of both copies it was provided that there should be paid ‘as rent for said demised premises $3,300, payable in monthly installments of $125, in advance, on the 1st day of January, 1899, and the same amount on the 1st day of each and every month of said year 1900,’ etc. Some talk appears to have taken place between appellants and appellees during the summer of 1900 with reference to leasing the premises in question, along with adjoining premises; but before any bargain of this kind was consummated the appellees leased the entire building, which included the two numbers already mentioned and also No. 559 Blue Island avenue, to one William Kolacek. Along with the lease a contemporaneous agreement was executed, which referred, in terms, to the lease, providing, among other things: ‘The said first party agrees to deliver possession of said premises, with the herein above and before described repairs and alterations done, unless said party is prevented from so doing by riot, strikes, inevitable accident, act of God, rebellion, injunction proceedings, or other act or acts of third parties, or of the second party himself, that said first party has no control over, on the 1st day of April, A. D. 1901. If said first party is prevented from so delivering possession on said 1st of April, 1901, by any of the aforesaid causes except the act of said second party, then the rent to be paid by said second party shall abate in proportion to delay and to that part of the premises of which possession is not delivered.’ January 24, 1901, the appellees commenced an action of forcible entry and detainer against appellants and recovered judgment thereon before a justice, from which judgment Albert Lurie appealed to the circuit court, filing a bond of $2,500 with William Loeffler as surety January 28, 1901. The condition of the bond was as follows: That he ‘shall prosecute his appeal with effect and pay all rent now due and that may become due before the final determination of the suit, and all damages and loss which the said plaintiffs may sustain by reason of the withholding of the premises in controversy and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is taken is affirmed or appeal dismissed.’ Two jury trials were had in the circuit court of Cook county on this appeal, the first resulting in favor of appellants, and on this being set aside the second resulted in favor of appellees, and a judgment was entered against appellants for possession on April 2, 1902, possession being yielded up April 8th or 9th of that year. May 24, 1902, appellees began an action of debt in the circuit court against William Loeffler and Albert Lurie, respectively, on the appeal bond in said forcible entry and detainer suit, and, after a trial by jury and verdict, judgment was entered February 11, 1905, in the appellees' favor for $2,500, damages, interest, and costs. This judgment was paid and fully satisfied February 23, 1905. Appellants paid no rent for the premises after December 31, 1900, except that which was recovered by the suit on the appeal bond. May 28, 1902, appellees began this proceeding in the circuit court; jury being waived, and trial had before the judge, who entered the judgment now in question of $3,380 in favor of appellees October 10, 1905.

CARTER, J. (after stating the facts as above).

From the propositions of law held by the trial judge it is apparent that he made the finding under the count of the declaration claiming double the rental value for willfully holding over, and not under those counts based on the covenants of the lease for the payment of $20 per day for holding over. Appellants contend that a recovery on any of the grounds charged in the declaration is barred and waived by the election to sue on the appeal bond given in the forcible entry and detainer suit and the recovery and satisfaction of the judgment therein. This precise question has never been decided by this court, and, while many authorities from other jurisdictions have been cited, none of them are on ‘all fours' with the question here involved. In Doe ex dem. Cheny v. Batten, 1 Cowper, 243, it was held that the acceptance of rent after notice to quit did not imply a consent that the tenancy should continue, but the court stated incidentally that such acceptance was a waiver of the landlord's right to double rent under the statute. The point covered by this last statement was not in the case. In Wright v. Smith, 5 Esp. 203, it was held that when a tenant held over after the expiration of his term, and the landlord recovered possession by ejectment, he could not thereafter maintain an action of debt under the statute. Some three years thereafter, in reviewing this last case, the court, in Soulsby v. Neving, 9 East, 310, practically overruled the former decision, and held that after the landlord had recovered in an action of ejectment he could still maintain an action of debt under the statute and recover for double the yearly value of the premises during the time the tenant held over after notice to quit. In Ryal v. Rich, 10 East, 7, the landlord had declared in debt, first, for the double value of the rent, and, second, for the use and occupation. The tenant tendered single rent before the action was brought and paid into court the money, which plaintiff took out before the trial and still proceeded. It was held that this was no cause of nonsuit as being a waiver of plaintiff's right to proceed for the double value; that the cause should have gone to the jury, and the plaintiff's going on with the action after taking the single rent was not evidence to show that he meant to waive his claim for double value, but that he merely accepted it pro tanto. This decision was quoted with approval in Higgins v. Halligan, 46 Ill. 173, where this court stated that ‘the doctrine is well established that accepting a sum tendered, if not accepted in full of all demands, does not preclude the party from proceeding for more.’...