Brewer v. Nat'l Union Bldg. Ass'n

• Decision Date: 03 April 1897
• Citation: 166 Ill. 221,46 N.E. 752
• Parties: BREWER v. NATIONAL UNION BLDG. ASS'N.
• Court: Illinois Supreme Court

166 Ill. 221

46 N.E. 752

BREWER

v.NATIONAL UNION BLDG. ASS'N.

Supreme Court of Illinois.

April 3, 1897.

Appeal from appellate court, First district.

Action by the National Union Building Association against Simeon W. Brewer. From a judgment in favor of plaintiff, defendant appealed to the appellate court, which affirmed the judgment, and granted a certificate of importance (41 Ill. App. 223), and defendant appeals to the supreme court. Affirmed.

A. C. & F. W. Story, for appellant.

Hamline, Scott & Lord, for appellee.

WILKIN, J.

On April 28, 1888, appellee leased to appellant certain premises, Nos. 66 and 68 Adams street, Chicago, for the year beginning May 1, 1888, and ending April 30, 1889, at $4,800; $1,133.37 to be paid at the signing of the lease, and the balance in installments of $333.33 on the 1st of June following and on the 1st day of each succeeding month. Brewer took possession, and paid the rent to the 1st day of February 1889. It is admitted appellee resumed possession April 1st, and it brought this suit in the circuit court of Cook county for the installments of rent due February 1st and March 1st. The defense is that the premises were surrendered, and the lease canceled, on January 29, 1889. On the first trial the judgment was for the defendant, and plaintiff appealed to the appellate court of the First district, where the judgment of the circuit court was reversed, and the cause remanded. See 41 Ill. App. 223. On a retrial of the cause the verdict and judgment were for the plaintiff for $666.66 and costs of suit. The appellate court having affirmed that judgment, and granted a cartificate of importance, the defendant prosecutes this appeal. The only question in the case going to the merits of the controversy between the parties is whether there was such a surrender of the lease on January 29, 1889, as discharged the leassee from liability for subsequent rent under the contract.

It appears that the lease was in duplicate, one copy held by each of the parties; the one held by appellee having the corporate seal attached, while the other, held by tenant, had not. The evidence tends to show that as early as the month of December, 1888, the tenant had rented another building in the same block, No. 78 Adams street, to which be intended to move his business, and had placed a sign on 66 and 68, ‘To Let.’ About January 29, 1889, one Fleming was negotiating with the company for a lease of Nos. 66 and 68, and expressed his desire to have immediate possession thereof. On that day he and the secretary of the company, Joseph M. Chambers, called on Mr. Brewer for the purpose of ascertaining whether he would surrender the premises. He expressed a willingness to do so. Fleming wanted a cancellation of his lease. Chambers at first refused to make the cancellation upon the ground that the January rent had not been paid, and also expressed a doubt as to his authority to make the release. Chambers, the president of the company, Gage, and one of the directors named Jackson, who was chairman of the renting committee of the corporation, and Mr. Brewer, met together; and, as Chambers testifies, upon Brewer giving his check for the January rent, there was written across the face of the copy of the lease held by Brewer the words, ‘Canceled January 29, 1889,’ signed, ‘National Union Building Association. F. M. Gage, President. J. M. Chambers, Secy.,’-which indorsement appears upon the copy offered in evidence. He also testified that at the same time Jackson told Mr. Gage, ‘You have no authority to cancel that lease,’ to which Mr. Gage replied ‘No; I don't think I have, but under the circumstances, for the purpose of helping Mr. Brewer and Mr. Fleming in this case, why, we will cancel this copy, and hold the original, which is in the possession of Mr. Chambers.’ And he says Mr. Brewer was present at that conversation. Fleming did not enter into the lease for the premises at that time, but placed in the hands of Chambers, for the company, the sum of $200 as a forfeit, and agreed to return in a few days, and sign the lease; but this he failed to do, and was neither seen nor heard of after the transactions of the 29th of January. Shortly after the indorsement was made upon the copy of the lease, Fleming and Brewer made an agreement that for each day that Brewer should remain in possession of the premises after the 1st day of February he should pay Fleming $10. On the 9th of February, 1889, the corporation, in pursuance of a resolution passed by its board of directors on the 8th, notified Brewer that it would hold him to the terms of his lease until May 1st, and ‘would not recognize any pretended cancellation of the same.’ Brewer, it is admitted, was at that time in possession of the premises, and there is no testimony tending to show that he made any response whatever to that notice. On the 18th of February he removed the last of his property from the building to No. 78, and on that day offered to return the keys to the secretary, Chambers, which he refused to accept. He had also offered them to the president, Gage, on February 14th, but he refused to receive them. During the month of March the company sent plumbers into the building for the purpose of repairing water pipes, at which time the keys were obtained from Brewer, but returned to him after the work was done. A few days prior to the 1st of April the keys were against obtained from Brewer for the purpose of cleaning up or making some repairs on the premises, and on April 1st they were taken possession of by the company.

The question here is whether or not there was a surrender of the lease on the 29th of January, 1889, by the mutual agreement of the parties. ‘A surrender is the yielding up of an estate for life or years to him that has the immediate reversion or remainder, wherein the particular estate becomes extinct by a mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention to yield up his interest in the premises to the lessor, or by operation of law, when the...