Auto. Supply Co. v. Scene-In-Action Corp.

• Decision Date: 20 June 1930
• Docket Number: No. 19885.,19885.
• Citation: 340 Ill. 196,172 N.E. 35
• Parties: AUTOMOBILE SUPPLY CO. v. SCENE-IN-ACTION CORPORATION.
• Court: Illinois Supreme Court

340 Ill. 196

172 N.E. 35

AUTOMOBILE SUPPLY CO.

v.SCENE-IN-ACTION CORPORATION.

No. 19885.

Supreme Court of Illinois.

June 20, 1930.

Error to Second Branch, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Alfar M. Eberhardt, Judge.

A judgment by confession was recovered by the Automobile Supply Company against the Scene-in-Action Corporation. After defendant's motion to vacate the judgment was denied, the Appellate Court on appeal affirmed the judgment, and defendant brings certiorari.

Affirmed.Albert Sabath, of Chicago (Charles Hudson, of Chicago, of counsel), for plaintiff in error.

Burry, Johnstone, Peters & Dixon, of Chicago (John W. Kearns, of Chicago, of counsel), for defendant in error.

DUNN, C. J.

The Automobile Supply Company recovered a judgment by confession against the Scenein-Action Corporation on a lease for $1,750 rent for the last five months of the term ending September 30, 1928, and $20 attorney's fees. The defendant made a motion to vacate the judgment, which was denied, and on appeal the Appellate Court affirmed the judgment. The record has been certified to us as a return to a writ of certiorari allowed on the petition of the defendant.

The defense alleged in the motion to vacate was a constructive eviction of the lessee by the breach of the landlord's covenant to furnish steam heat during ordinary business hours of the heating season, the premises having been rented by the defendant for office purposes and for the manufacture, sale, and shipping of electrical advertising display signs. The affidavit filed by the defendant in support of its motion to vacate showed that the office was rented for the use of the officers of the defendant, its clerks, stenographers, bookkeepers, and other employees, and the rest of the premises for the manufacture, sale, and shipping of electrical display advertising signs by artists, workmen, designers, mechanics, clerks, and other employees of the defendant; that it was necessary for the proper conduct of the business that not only the office but the workrooms should be kept at a comfortable temperature, otherwise the officers, clerks, stenographers, artists, designers, and workmen could not do a reasonable amount of work, or work of proper kind or accuracy; that the kind of work, the materials used, and the class of workmen and artists employed all required that the premises be kept at a reasonably comfortable degree of heat, all of which was well known to the plaintiff and its officers and agents at and before the execution and delivery of the lease; that the plaintiff did not furnish heat reasonably adequate to make the premises tenantable for office purposes or for the manufacture, sale, and shipment of electrical advertising display signs, but, on the contrary, in November, 1927, during cold days, the premises were without heat from two to five hours on several days; that during December, 1927, there were eight cold days when the premises were without heat from two to five hours each day; that one day for six hours the premises were without heat and were cold, uncomfortable, and untenantable for the purpose for which they were rented; that complaint was frequently made during this period to the plaintiff and its agents but without effect; that the plaintiff was indifferent, and though often requested did not attempt to remedy the matter or give adequate heat for the purpose for which the premises were rented; that on February 20, 1928, at the opening of the usual business hours, the temperature in the premises was below 50° owing to the negligence of the plaintiff in failing to heat them and the defendant was unable to do business until after 10 o'clock on that day, and the defendant gave notice to the plaintiff that, owing to the failure to comply with the terms of the lease, it would be terminated and canceled on April 30, 1928, and that the defendant would vacate the premises on that date; that no attempt was made by the plaintiff to better such conditions and on many days during February and March the temperature was below 50° Fahrenheit; that on April 9, 1928, it was below 50° upon the arrival of the employees, and remained so until after 11:30 owing to the negligence of the plaintiff and its employees; that during the months of November, December, February, March, and April, the defendant had from thirty to thirty-five employees on said premises who for a considerable time and parts of many days were unable to work because of the frigid temperature, and it was impossible to make the artistic designs, plates, pictures, photographs, and displays necessary in and about the manufacture of its signs unless the temperature was above 55° Fahrenheit; that a number of the employees of the defendant were rendered sick and unable to carry on their work by reason of colds caused by the lack of proper heat in the premises, and were obliged to go home and abandon their work, for days at a time, to the great loss and damage of the defendant, and at other times said employees labored under great handicaps and were unable to produce the amount and character of work which they ordinarily produced when the rooms were comfortably warm, thereby again causing great loss and damage to the defendant and the output of work was much less than it would have been if the premises had been kept adequately heated; that by reason of the premises, and especially the failure on the part of the plaintiff to furnish adequate heat, the defendant was deprived of the beneficial use and enjoyment of the premises leased, was unable to carry on its business, and was obliged to, and did, vacate and abandon the premises, and on April 30, 1928, surrendered them to the plaintiff and delivered the keys to its agent, who accepted them, and since that date and during the period for which the judgment for rent was confessed the defendant did not occupy the premises or any portion of them and has not been, and is not, a tenant of the plaintiff.

The eviction of a tenant from the possession or enjoyment of the demised premises, or any part thereof, by the landlord releases the tenant from the further payment of rent. Rent is the return made to the lessor by the lessee for his use of the land, and the landlord's claim for rent therefore depends upon the tenant's enjoyment of the land for the term of his contract. It follows that if the tenant is deprived of the premises by any agency of the landlord the obligation to pay rent ceases, because such obligation has force only from the consideration of the enjoyment of the premises. The eviction which will discharge the liability of the tenant to pay rent is not necessarily an actual physical expulsion from the premises or some part of them, but any act of the landlord which renders the lease unavailing to the tenant or deprives him of the beneficial enjoyment of the premises constitutes a constructive eviction of the tenant, which exonerates him from the terms and conditions of the lease and he may abandon it. Taylor on Landlord and Tenant, §§ 379, 380; Halligan v. Wade, 21 Ill. 470, 74 Am. Dec. 108;Anderson v. Chicago Marine & Fire Ins. Co., 21 Ill. 601;Leadbeater v. Roth, 25 Ill. 587; Bentley v. Sill, o5 Ill. 414; Wright v. Lattin, 38 Ill. 293;Smith v. Wise & Co., 58 Ill. 141;Hayner v. Smith, 63 Ill. 430, 14 Am. Rep. 124.

Not every act of a landlord in violation of his covenants or of the tenant's enjoyment of the premises under the lease will amount to a constructive eviction. Some acts of interference may by mere acts of trespass to which the term ‘eviction’ is not applicable....