Burroughs v. Clancey

• Decision Date: 30 September 1869
• Citation: 1869 WL 5488,53 Ill. 30
• Parties: BENJAMIN BURROUGHSv.THOMAS CLANCEY.
• Court: Illinois Supreme Court

53 Ill. 30

1869 WL 5488 (Ill.)

BENJAMIN BURROUGHS

v.THOMAS CLANCEY.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. WILLIAM A. PORTER, Judge, presiding.

The opinion states the case.

Mr. W. K. MCALLISTER, for the appellant.

Messrs. NICHOLES & MORRISON, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of covenant, in the Superior Court of Chicago, on a lease, containing the usual stipulations. The breaches assigned were, first, that one hundred and sixty dollars sixty-six cents of the rent were due and unpaid for the months of January, February, March and April of the first year of the term; that after defendant had entered into the possession of the premises, they became greatly ruinous, the windows broken and destroyed, the locks and plastering torn off, and the premises greatly injured; that defendant received and entered upon the premises in good order and condition, and did not, and would not, yield them up in like good condition, but yielded them up at the end of the term in a damaged condition; that there was levied on the premises a large water rent, twenty dollars whereof became due and payable on the first of November, 1864, and the further sum of twenty dollars thereof on the first of May, 1865, from which the defendant did not keep plaintiff harmless; that plaintiff had been put to great expense in employing attorneys to enforce the payment of the rent reserved in the lease; that the plaintiff had been put to additional expense of fifty dollars in employing attorneys to procure the possession of the premises and in enforcing the other covenants of the lease; and last, that plaintiff had paid a large amount of water rent and for repairs of hydrants, supply and waste pipes and sewers on the premises, which were ordered by the Board of Public Works, namely: two hundred dollars, and that the defendant would not pay the same, as additional rent, or any part thereof.

The first two assignments were traversed by the defendant, as follows: As to the first, that there was no rent due and unpaid at the time, &c., concluding to the country. To the second, that the premises did not become ruinous, &c., concluding to the country. A demurrer was sustained to these traverses. A plea was then filed to the whole declaration, denying the entry of plaintiff for non-payment of rent, and averring that after making the indenture, they having divers disputes between them about the premises, then and there, as a compromise and settlement thereof, and before the commencement of the suit, mutually agreed that the indenture should be surrendered, given up and annulled, and the same was surrendered and canceled, and the possession of the premises given to plaintiff, concluding with a verification.

A third plea was filed to the whole declaration, setting out in substance, that the premises were leased for hotel purposes, and to induce defendant to take them plaintiff falsely and fraudulently represented them to be in good order and condition, with good drainage to them, by means of a brick drain under the house, well built and well covered up, sufficient to carry off the slops and all waste water, and that the premises were in a good, wholesome condition, averring that the representations were false, and that plaintiff knew them to be so when he made them, and was thereby induced to take the premises, and at great trouble and expense moved into the house for the purpose of keeping a hotel therein, averring he had many guests, and would have done a...