Cleveland, C., C. & St. L. Ry. Co. v. Wood

• Court: Illinois Supreme Court
• Writing for the Court: BOGGS
• Citation: Cleveland, C., C. & St. L. Ry. Co. v. Wood, 189 Ill. 352, 59 N.E. 619 (Ill. 1901)
• Decision Date: 20 February 1901
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. WOOD.

189 Ill. 352

59 N.E. 619

CLEVELAND, C., C. & ST. L. RY. CO.

v.WOOD.

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from appellate court, Fourth district.

Action by W. A. Wood against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the appellate court (90 Ill. App. 551) affirming a judgment for plaintiff, defendant appeals. Affirmed.C. S. Conger, for appellant.

Choisser, Whitley & Choisser and Parish & Parish, for appellee.

BOGGS, C. J.

Having procured a certificate of importance, the appellant company has perfected this appeal from the judgment of the appellate court for the Fourth district affirming the judgment in the sum of $362.50 entered in the circuit court of the county of Saline in favor of appellee in an action of assumpsit brought by appellee against the appellant conpany. The action was to recover damages for the alleged breach of certain covenants contained in a written lease executed by the appellant company and the St. Louis, Alton & Terre Haute Railroad Company, as parties of the one part, and one Alice C. Goe, whereby the said railroad companies leased to said Alice C. Goe a parcel of the right of way between the tracks of said railroads, and about 30 feet north of their depot, at Parker City, at a nominal rental, the said lessee covenanting to construct on the said leased ground a hotel building on a plan to be approved by the authorities of the said companies, and to ‘keep or run the same as a hotel during said term of lease in a suitable and proper manner, including facilities for the accommodation of tranis with meals when so required, making the usual reduced rates to the employés of said companies.’ The lease also contained the following stipulation: ‘Said companies severally agree, each for itself, that it will stop such of its passenger trains for meals at such station when the time of passing there is suitable, and such stoppage does not conflict or interfere with connections at other points.’ The declaration averred that the lessee, Alice C. Goe, assigned and transferred her right and interest in the lease to one Daniel G. Turner, who began and partially completed the construction of the contemplated hotel building, and transferred and assigned the lease to the plaintiff, the appellee; that all of the assignments were with the consent and approval of the said companies; that appellee completed the building in accordance with the plans and specifications approved by the said companies, and furnished and equipped the same, and was ready to keep and maintain, and did keep, maintain, and operate, the said hotel in all respects as required by the lease, but that the said appellant company failed and refused to stop its trains for meals, in violation of the covenants of the lease on its part. A plea of the general issue, with notice of special defense, was interposed, and the cause was heard before the court and a jury. On the hearing, counsel for the appellant objected to the introduction of the lease in evidence for the following reasons: First, for the reason that the clause in it on which suit is brought, by which said company agreed to stop their trains, is a personal contract with Mrs. Goe, and cannot be assigned; second, it appears by the evidence that this lease, and all rights under it, have been transferred from the plaintiff on July 11, 1893, since which time he has had no interest in the lease, or any connection with the contract, and therefore cannot maintain an action upon it. The court overruled these objections, and permitted the lease to be received in evidence.

An express provision in the lease contemplated an assignment thereof with the consent of the appellant company. The original lessee, Alice C. Goe, wrote her name on the lease, and delivered possession of the leased premises and of the lease to Daniel Turner, and the appellant company indorsed thereon an assignment and transfer of the lease to the said Turner. Turner assigned the lease, and delivered possession of the leased premises to the appellee, Wood, and the appellant company indorsed on the lease its written consent to that transaction. Engagements for personal services requiring skill and experience may be assigned with the consent of the other contracting party. Sloan v. Williams, 138 Ill. 43, 27 N. E. 531,12 L. R. A. 496; 2 Am. & Eng. Enc. Law (2d Ed.) 1036. The first of said objections was, therefore, properly overruled.

We think the second objection to the introduction of the lease was also properly deemed insufficient. Though it appeared that the appellee had assigned the lease for the remainder of the term to another party, yet it was competent for him to institute an action for any damages accruing to him by reason of a breach of the covenants of the lease on the part of the appellant company while he held the lease, and to recover such damages it was proper that the lease should be exhibited in evidence. This objection, therefore, did not go to the question of the admissibility of the lease in evidence.

Counsel for the appellant argues that the court erred in overruling its objection to the admissibility of the lease in evidence for the reason that the remainder of the term of the lease exceeded the period of one year, and there was no full, complete, written assignment of it by the original lessee, Alice C. Goe. The appellant did not specify this objection in the trial court, or bring it to the attention of the trial judge, and obtain a ruling upon it. Alice C. Goe assigned the lease in blank, and delivered it and possession of the leased premises to said Turner. The assignment in blank did not answer the requirements of the statute of frauds, but the assignment from her to Turner became an executed and fully completed assignment in point of fact. As part of the same transaction, the following indorsement was written on the lease, and signed by the appellant company and said Turner, viz.: ‘St. Louis, November 22, 1890. We hereby assign and transfer the within lease to Mr. Daniel Turner upon the terms and conditions therein expressed, as per agreement with him, and to take effect from this date.’ The...