Chicago Legal News Co. v. Browne
| Decision Date | 31 October 1879 |
| Citation | 5 Ill.App. 250,5 Bradw. 250 |
| Parties | CHICAGO LEGAL NEWS COMPANYv.THOMAS R. BROWNE ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed March 2, 1880.
This was assumpsit by Davison, as lessor, against the Chicago Legal News Company, as lessees, to recover rent claimed to be due upon two certain demises, known as Nos. 151 to 153 Fifth avenue, in the city of Chicago. The first lease was made December 1, 1874, of the main floor of said numbers, to hold until May 1, 1878, for the rental of $7,475, payable in monthly installments. The other lease was made May 1, 1877, and of the basements of the same numbers, to hold from that time until May 1, 1878, at the rent of five hundred dollars, payable in a specified manner. The declaration also contained the common counts for use and occupation of same premises. The defendent pleaded the general issue and two special pleas, which are substantially alike. The second special plea avers that before and at the time of the making of the demises the defendant's business was that of printing books, newspapers, etc., and its business necessarily required, and it employed large numbers of men skilled in said business; that before and at the time of making said demises, Nos. 147 and 149 Fifth avenue and situate near to the premises demised to defendant, were vacant and unoccupied, and of which the plaintiff, defendant's lessor, claimed to be the owner, and that he then and there faithfully promised the defendant that he, the said plaintiff, would not permit said vacant premises to be occupied for the purpose of selling intoxicating liquors. Avers that plaintiff afterwards leased the said then vacant premises, located near those demised to defendant, for the purpose of the sale at retail of intoxicating liquors, in quantities less than one gallon; that plaintiff then and there well knew that such intoxicating liquors were to be sold there as aforesaid; that he hath willfully, wickedly, and knowingly permitted the sale of such intoxicating liquors in and upon said premises situated near the premises demised by him to defendant, well knowing that divers employes of defendant did resort to said place and become intoxicated, and unfit to perform their duties to defendant. Avers, that in consequence of the premises defendant's servants and employes obtained intoxicating liquor at said place where it was so sold, became thereby intoxicated and unable to perform their work, and by reason thereof defendant's business was injured, materials were destroyed, and defendant thereby sustained great pecuniary loss and suffered great annoyance, which damages defendant offered to recoup in this action.
The plaintiff obtaining leave to reply, double filed six replications:
1. That defendant has not been injured in its property in consequence of said supposed intoxication of any person employed by defendant in manner and form, etc.
2. That said several persons did not, nor did any of them, become intoxicated in said place in the pleas mentioned.
3. That defendant has not, since May, 1877, been deprived of the services or skill of any servant on account of intoxication, or been prevented from completing any undertaking, or been injured in its business by reason of any such alleged unskillful or unworkmanlike manner in which such employes performed their work.
4. That said employes did not, nor did any of them, obtain or purchase liquor at said place.
5. The same as third.
6. The same as second.
On the trial before the court and a jury, the plaintiff introduced the leases in evidence, proved the amount due and rested.
The defendant gave evidence tending to prove the promise of plaintiff, before and at the time of the demise to defendant, that he would not permit intoxicating liquors to be sold in said Nos. 147 and 149 Fifth avenue. That liquor was in fact retailed therein. Evidence was given tending to show that the employes of defendant, engaged in said printing business, frequently became intoxicated, spoiled and delayed work in consequence, and that they got their liquor on said premises, and that defendant's business was greatly interrupted, resulting in damage and annoyance. The court, on behalf of plaintiff, instructed the jury as follows:
“1. The court instructs the jury that, in order to allow defendant any set-off or recoupment against the plaintiff's claim, they must be satisfied from the evidence:
First. That the lessor, Edmund L. Davison, leased the room occupied as a saloon by Everts.”
“Before any set-off or recoupment can be allowed, defendant must prove actual damage or injury to its property, in the manner above stated.”
“Exemplary damages are damages beyond actual damages given by way of example, or as a warning to deter others, and not by way of punishment.” “In considering the question the one of allowing exemplary damages, it is the duty of the jury to carefully consider and weigh all of the facts and circumstances detailed in the evidence; and to give, or refuse to give exemplary damages, as they find or fail to find in the evidence, acts of bad faith or wrong doing.”
The jury found for plaintiff, and assessed his damages at $1,773.46. The court overruling defendant's motion for new trial, gave judgment on the verdict, and the defendant brings the case to this court by appeal.
Mr. F. H. KALES, for appellant.
Mr. J. E. MONROE and Mr. GWYNN GARNETT, for appellee; as to the right to substitute the assignee of the bankrupt as a party, cited Ames v. Gilman, 10 Met. 239; Day v. Laflin, 6 Met. 280; Connor v. Wellford, 22 Gratt. 195; Lacy v. Rockett, 11 Ala. 1002; Brooks v. Harris, 12 Ala. 555; Southerland v. Davis, 42 Ind. 26; Bailey v. Smith, 10 R. I. 26; Boone v. Stone, 3 Gilm. 540; Rogers v. Stevenson, 16 Minn. 68; Buck v. Winters, 28 Ark. 6; Herndon v. Howard, 9 Wall. 664; Lantzinger v. Ribble, 36 Md. 32; Holbrook v. Correy, 25 Ill. 543; Joy v. Bedell, 25 Ill. 537; Holbrook v. Brenner, 31 Ill. 501; Heath v. Hyde, 87 Ill. 91.
The order substituting the assignee will be presumed to have been made upon sufficient evidence: Earl v. The People, 73 Ill. 330; Reedy v. The People, 84 Ill. 569.
Where the plaintiff sues in a representative capacity, objection to his right to sue should be raised by plea in abatement: Ballance v. Frisby, 2 Scam. 63; Lowe v. Bowman, 5 Blackf. 410; Brown v. Nourse, 55 Me. 230; Thynne v. Protheron, 2 Maule & S. 553; Collins v. Ayres, 13 Ill. 358.
Against the right to set-off or recoup unliquidated damages arising out of torts disconnected with plaintiff's claim: Hawks v. Lands, 3 Gilm. 227; Deforrest v. Order, 42 Ill. 500; Robeson v. Hibbs, 48 Ill. 408; Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 Ill. 115; Waterman v. Clark, 76 Ill. 428.
Defendant is not entitled to recover exemplary damages: Miller v. Kirby, 74 Ill. 243; Cutter v. Smith, 57 Ill. 256; Lawrence v. Hageman, 56 Ill. 69; Stillwell v. Barnett, 60 Ill. 210; Brantigan v. White, 73 Ill. 564; Killunan v. Arnold, 71 Ill. 632; Meidel v. Anthis, 71 Ill. 241; Bates v. Davis, 76 Ill. 222.
The matters set up in the special pleas are to be regarded as the basis of recoupment of damages, and is in the nature of a cross-action, the damages to be applied by way of extinguishing or reducing the plaintiff's demand. The rule is well settled in this State and in many others, that if the demands of both parties arise out of the same contract or transaction, the defendant is allowed to recoup, although the damages on both sides may be unliquidated. If the plaintiff sue on one part of a contract as to which there are mutual stipulations made at the same time, and relating to the same subject-matter, the...
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