Chicago Attachment Co. v. Davis Sewing Mach. Co.

• Court: Illinois Supreme Court
• Writing for the Court: The facts fully appear in the following statement by SCHOLFIELD
• Citation: Chicago Attachment Co. v. Davis Sewing Mach. Co., 31 N.E. 438, 142 Ill. 171 (Ill. 1892)
• Decision Date: 20 June 1892
• Parties: CHICAGO ATTACHMENT CO. v. DAVIS SEWING MACH. CO.

142 Ill. 171

31 N.E. 438

CHICAGO ATTACHMENT CO.

v.DAVIS SEWING MACH. CO.¹

Supreme Court of Illinois.

June 20, 1892.

On rehearing.

The facts fully appear in the following statement by SCHOLFIELD, J.:

This was assumpsit for rent, brought in the Cook circuit court by the Davis Sewing Machine Company, appellee, against the Chicago Attachment Company, appellant. The former recovered judgment for $2,788.59, and the judgment was affirmed in the appellate court. On April 28, 1882, appellee leased to Walter Scates and John M. Griest the fifth and sixth floors of the building numbered 46, 48, and 50 East Jackson street, in Chicago, for a term of five years, extending from May 1, 1882, to April 30, 1887, at a rental of $137.50 per month. It was stated in the lease that the premises were demised ‘to be used for the manufacture of sewing machine attachments, or any business not objectionable to the owner of the building, and for no other purpose whatever.’ The lessees were partners under the firm name of Scates & Griest, and also used the trade name of The ‘Chicago Attachment Company,’ and engaged in the business, upon the leased premises, of manufacturing and selling attachments for sewing machines. On February 9, 1883, Griest disposed of his interest in the firm to Thomas S. Ridgway, and made to Ridgway a bill of sale, in which it was specified that he (Griest) sold and delivered to said Ridgway all the interest of him, said Griest, in the goods, chattels, patents, inventions, credits, and property of every description of or belonging to the Chicago Attachment Company and Scates & Criest, etc. At the same time a written contract was entered into by Ridgway, Scates, and Griest, from which it appears, among other things, that Ridgway and Scates intended to form, as soon as practicable, a jointstock corporation, for the purpose of continuing and carrying on said business, to be called the ‘Chicago Attachment Company.’ The contemplated corporation was not organized until July 2, [142 Ill. 173]1883. In the mean time the business was carried on, upon the premises in question, by Ridgway and Scates, as successors to Scates & Griest. They found they did not require all of both floors for their business, and, retaining the sixth floor and an office in the northeast corner of the fifth floor, they on March 23, 1883, sublet, by formal lease, to H. J. Edwards & Sons, the residue of said fifth floor, for a term beginning April 1, 1883, and ending April 30, 1884, at a rental of $60 per month. Upon the organization of the appellant corporation, on July 2, 1883, it adopted a resolution to the effect that it would receive from said Ridgway and said Scates, in full payment for the shares of stock subscribed by them, respectively, ‘the machinery, tools, fixtures, materials, merchandise, and property of all descriptions, owned by them jointly and used by them in their business of manufacturing sewing machine attachments, at their shops on the fifth and sixth floors of the building known as ‘Numbers 46, 48, and 50 East Jackson Street,’ together with all the patents owned by them jointly, concerning sewing machine rufflers, tuckers, and hemmers; also all inventions and improvements in said attachments in which they are jointly interested; also the good will of their said business and all contracts concerning said business and said attachments now held by them jointly; all of which said business and good will and property thereof is of the value of $49,600.00.' It also passed a further resolution directing its president and secretary, upon the execution and delivery of proper instruments assigning and conveying said property, to issue to Ridgway certificates for 248 shares of paid-up stock, and to Scates certificates for 248 shares of paid-up stock, in said company. On July 11, 1883, said Ridgway and said Scates made a bill of sale to the corporation. Said bill of sale made specific mention of the different articles sold. It contained no words of general description, and it made no specific mention of the lease from the Davis Sewing Machine Company to Scates & Griest; but it specified ‘one lease to H. J. Edwards and Sons, dated March 23, 1883, leasing the fifth floor of building Nos. 46, 48, & 50 Jackson street, Chicago, at rate of $60 per month, until April 30, 1884.’ Upon the execution of this bill of sale, certificates for the shares of capital stock mentioned in the resolutions of the corporation were issued to Ridg way and to Scates, respectively. H. J. Edwards & Sons, under the sublease to them, entered into possession of that portion of the fifth floor demised to them, and paid rent to Ridgway & Scates to July 1, 1883, and paid rent to the appellant, the Chicago Attachment Company, from the last-mentioned date until the expiration of the sublease on April 30, 1884. Upon the original lease was indorsed a consent to an assignment of the lease to appellants, and also the words proper for an assignment of the lease, but neither of these was signed by any one; and so they were, in fact, mere blank forms for those purposes, which were never used. From and after the date of its organization until the latter part of June, 1884, the appellant occupied and used the sixth floor and the office on the fifth floor of the building, and was engaged in carrying on therein its business of manufacturing and selling attachments for sewing machines. From February 10, 1883, to July 1, 1883, the rents accruing to the Davis Sewing Machine Company for the entire premises, under its demise of April 28, 1882, were paid by Ridgway and Scates; and from and after July 1, 1883, and until July 1, 1884, such rents were paid by appellant. In the latter part of June, 1884, the appellant removed its property from and ceased to occupy the premises, and refused to pay anyfurther rents therefor. The judgment which was rendered in the case at bar was for rents which accrued under the lease executed by appellee and by Scates and Griest for a portion of the term subsequent to the time that appellant ceased to be in actual possession of the demised premises, or any part thereof.

The case was tried by the court without a jury; and the following written propositions, submitted at the trial by appellant, the court refused to hold as law applicable to the case, to wit: ‘First proposition: The court holds that the bill of sale from Scates and Ridgway to defendant shows on its face, and by necessary implication, that no interest or estate in the premises in question, other than the rent to be paid by Edwards & Sons, was or was intended to be assigned to defendant. Second proposition: In the lease from plaintiff to Scates & Griest the lessees covenanted not to assign or sublet, and an assignment or subletting by them was made a cause of forfeiture. The court is bound to construe the documents and facts shown in evidence as being consistent with said covenant and condition, if said documents and facts admit of such construction. The court therefore holds that the status of defendant on said premises was that of a licensee, merely; that defendant stayed there and transacted its business by the permission of the lessees, and paid for such privilege or permission by paying on behalf of the lessees what the lessees were bound to pay under the lease; and that defendant never had any estate in said premises as assignee of said term. Third proposition: The court holds that actual occupancy of leased premises, and payment of rent to the lessor, for part of the unexpired term, by an assignee, pursuant to a contract of assignment with the lessee, which is not in writing, is not sufficient to exempt such assignment from the operation of the statute of frauds, where the assignee vacates before the term expires, and is sued for subsequently accruing rent. Fourth proposition: The facts, if they are shown by the evidence, that defendant, with the knowledge and consent of plaintiff and the lessees, and under an express or implied verbal contract of assignment with the lessees, went into possession of the premises in question in July, 1883, continued in possession until about July, 1884, paying the rent to the lessor in the mean time, as provided in the original lease, and then vacated the premises, and thereafter had nothing more to do with the same, are not sufficient to take the case out of the statute of frauds. Such facts do not constitute such an execution or performance of the contract of assignment as will do away with the necessity of proof that such assignment was in writing, as required by said statute.’ Judgment was rendered in favor of the appellee for the amount of rent stipulated to be paid by the lease, for the term between the abandonment of the premises by appellant and the termination of the term of the lease; and that judgment was affirmed by the appellate court of the first district on appeal to it by the present appellant. This appeal is from that judgment. The errors assigned bring before the court the questions discussed in the opinion.

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

Scates & Griest are liable to appellee for the payment of the rent in controversy, for that is their contract with appellee; but appellant never made any contract with appellee for its payment, and, if it is liable to pay appellee therefor, it can only be so because of privity of estate between it and appellee, resulting from its being assignee of the remainder of the term of Scates & Griest during the time that the rent in controversy accrued. The bill of sale from Scates and Ridgway to appellant omits reference to the lease from appellee to Scates & Griest, and there is no other writing purporting to transfer that lease to appellant. There is, it is true, a recital in that bill of sale that it includes ‘all of the right, title, and interest in and to a certain contract entered into by John M. Griest, of Chicago, Illinois, and ourselves, on the 10th day of February,...