Chapman v. Kirby

• Decision Date: 30 September 1868
• Citation: 1868 WL 5208,49 Ill. 211
• Parties: CHARLES D. CHAPMAN et al.v.JAMES KIRBY.
• Court: Illinois Supreme Court

49 Ill. 211

1868 WL 5208 (Ill.)

CHARLES D. CHAPMAN et al.

v.JAMES KIRBY.

Supreme Court of Illinois.

September Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion fully states the case.

Messrs. DENT & BLACK, for the appellants.

Messrs. SPAFFORD & MCDAID, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears, from the evidence in this case, that Pomeroy Brothers, on the 1st day of May, 1864, were the owners of a planing mill and premises in the city of Chicago, and by a deed duly executed, leased to appellee a portion of the premises and a quantity of steam power, which was specified, from the 1st day of May, 1864, until the 1st day of January, 1869, at a specified rent. Lessors reserved the right to stop for reasonable repairs when required, but such repairs to be made with the least possible delay; lessors covenanted for the use and enjoyment of the premises and power during the term, and appellee covenanted, on his part, as follows:

“ It is expressly understood and agreed, by and between the parties aforesaid, that if the rent above reserved, or any part thereof, shall be behind or unpaid on the day of payment whereon the same ought to be paid, as aforesaid, or if default shall be made in any of the covenants or agreements herein contained, to be kept by the said party of the second part, his executors, administrators and assigns, it shall and may be lawful for the said parties of the first part, their heirs, executors, administrators, agent, attorney or assigns, at their election, to declare said term ended, and into the said premises, or any part thereof, either with or without process of law, to re-enter, and the said party of the second part, or any other person or persons occupying in or upon the same, to expel, remove and put out, using such force as may be necessary in so doing, and the said premises again to re-possess and enjoy, as in their first and former estate. * * * * And if at any time said term shall be ended at such election of said parties of the first part, their heirs, executors, administrators and assigns, as aforesaid, or in any other way, the said party of the second part, his executors, administrators and assigns, do hereby covenant and agree to surrender and deliver up said above described premises and property, peaceably, to said parties of the first part, their heirs, executors, administrators and assigns, immediately upon the determination of said term as aforesaid, and if he shall remain in possession of the same ten days after notice of such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said premises, under the statute, and shall be subject to all the conditions and provisions above named, and to eviction and removal, forcibly or otherwise, with or without process of law, as above stated.” It appears that Pomeroy Brothers assigned their lease to A. C. Hesing, and he to appellant, Chapman. Appellee paid rent to Pomeroy Brothers until they assigned their lease, and afterwards to Chapman. But after the 1st of April, 1867, no rent was paid, but it seems to have been tendered after the notice of the 7th of May was served on appellee notifying him that appellant elected to terminate the lease after the expiration of ten days, for the previous failure to pay rent on the 1st of May. On the 1st of June, 1867, Chapman severed the connecting shaft, just outside of the portion of the premises held by appellee, which connected with the engine and supplied appellee with power, and thus stopped his machinery. And for this act, on the part of Chapman, appellee brought an action on the case, to recover for the damages he claims to have sustained, and on a second trial in the court below the jury found a verdict for five thousand dollars in favor of appellee. A motion for a new trial was entered, which the court overruled and rendered a judgment on the verdict, and the case is brought to this court on appeal, and a reversal is asked upon several grounds.

It is claimed that appellants had the right to enter, as soon as appellee failed to perform his covenants, and that when they gave notice in May that they would terminate the lease because the rent was not paid, they did all that was required of them before they broke the connection and stopped the power.

The right of forfeiture being a harsh remedy, and liable to produce great hardship, if not oppression, has never been favored by the law, and hence, before a lease can be declared forfeited, the law requires a strict compliance with several important pre-requisites. Among them is a demand of the rent on the day it falls due, for the precise amount, at a convenient hour before sunset, on the land, if no place is named, or at the place specified in the lease for its payment; a demand must be made, in fact, at the place, although no person be present, and there must be a failure or refusal at the time to make payment. Where these things were all done, the common law authorized the landlord to declare a forfeiture if the lease provided for such forfeiture. In this case none of those things were done, and hence, the case does not fall within the common law rule, and no forfeiture occurred from the giving of the notice of the 7th of May.

If it be urged that there was a valid declaration of a forfeiture, so as to terminate the lease and authorize a re-entry by appellants under the statute, it will be found that the act of 1865 has not been complied with by appellants. The notice was served on appellee on the 7th day of May, 1867, and appellants instructed their clerk, who served the notice, not to receive the rent if appellee offered to pay it, and he offered to pay it, and the money was refused, within the ten days after the service of the notice. It was held, in the case of Chadwick v. Parker, 44 Ill. 326, in giving a construction to this...