Cornelia A. Streeter v. Elijah S. Streeter.

• Decision Date: 31 January 1867
• Parties: CORNELIA A. STREETERv.ELIJAH S. STREETER.
• Court: Illinois Supreme Court

43 Ill. 155

1867 WL 4999 (Ill.)

CORNELIA A. STREETER

v.ELIJAH S. STREETER.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

This was an action of assumpsit, brought by the appellee, in the court below, against the appellant, upon two promissory notes, one for the sum of $50 and the other for $100. The cause was tried before a jury, who rendered a verdict for $169.20 against the defendant, upon which judgment was rendered; whereupon, an appeal was taken to this court. The facts necessary to an understanding of the questions presented for decision here, are stated in the opinion.

Messrs. BUCKLEY, MARCY & HUNT, for the appellant.

Messrs. SKINNER & MARSH, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

The questions presented by this record are, first, as to the refusal of the court to exclude the note for one hundred dollars, offered in evidence by the plaintiff, on the ground of variance. The note is described in the declaration as bearing date April 6, 1864, and the one offered in evidence, and admitted against the objection of the defendant, bore date September 6, 1864.

That this is a substantial variance, cannot be questioned. The date of a note is matter of essential description, and must be precisely proved. Spangler v. Pugh, 21 Ill. 85.

The appellee insists, that this question of variance cannot be made, because the common money counts are sufficient, under which it could be admitted, its execution having been proved by a competent witness.

Appellant admits, if its execution was proved, it could be admitted under those counts, and such is the law. The action was brought on two notes, and George A. Hunt, a witness for the defendant, stated, when testifying to the agreement between these parties, signed by the appellee, that the agreement and notes sued on were executed at the same time. The paper (agreement) was signed and executed by appellee in his presence, and its execution and the notes were parts of one and the same transaction. This question is thus settled, and there was no error in admitting the note in evidence under the money counts, its execution by the defendant having been proved.

The next question made by appellant is, excluding proper testimony offered by her under her fourth plea, which was this: That the sole and only causes of action on which the declaration is founded are the notes therein mentioned; that, when they were made, plaintiff was in possession of certain land of defendant, claiming to hold the same under a lease from her to plaintiff for a term of years not then expired, upon which land was a house, a cistern containing wholesome water, and a large number of fruit trees in good condition; that, at the making of the notes, plaintiff agreed with defendant, that he would, immediately upon the execution and delivery of the notes, deliver up possession of this land, house, cistern water and fruit trees, in as good condition as the same were then, and surrender to defendant his claim to hold the land under the lease; that this agreement was the sole consideration of the note; that plaintiff did not keep his agreement; that he did not, immediately upon the execution and delivery of the notes, or at any time afterward, deliver up the possession of the land, together with the house, cistern, etc., to defendant, in as good condition as the same were at the time of making the notes; that he withheld the possession of the land, house, etc., from defendant for a long time after the making the notes; that, while so withholding the same, he, by gross negligence, permitted the house to be destroyed by fire; that he caused coal oil to be poured into the cistern so as to render the water in it unwholesome, and girdled and killed the fruit trees; that, by reason of this failure to perform the agreement, defendant has suffered damages to the amount of five hundred dollars, which she offers to set off against the notes. This plea is accompanied by a bill of particulars, claiming therein two hundred dollars damages.

Each of the allegations in this plea was separately replied to by a denial of them. The fifth replication alleged that it was part of the agreement in the plea mentioned, that plaintiff might retain possession of the land, house, etc., for a few days, and until notified to remove therefrom by the defendant; and that he did surrender them in a few days, to wit, ten days thereafter and when notified so to do by defendant, and that she accepted the same in full performance of the agreement. Defendant rejoined to this replication denying the allegations. Issues were made upon these replications, and on the rejoinder by defendant.

What were the issues on the four replications to the fourth plea? First, that the alleged agreement was not the consideration of the notes; second, that the plaintiff did not make the alleged agreement; third, that he performed his agreement to deliver up the possession of land, cistern and fruit trees in as good condition as they were when the agreement was made, and to surrender his claim to hold the land under the lease; and, fourth, that he did not, by his gross negligence or otherwise, permit the house to be destroyed by fire, nor cause coal oil to be poured into the cistern, nor girdle or destroy the fruit trees.

These were the issues before the jury, together with the one above stated, made by defendant's rejoinder to plaintiff's fifth replication setting up a new agreement.

The appellee contends that the allegations of tort in this plea are immaterial in this action,--that they are not of the substance of the plea, but surplusage, upon which no issue could be formed in any way affecting the case. But has not the plaintiff made those allegations material by tendering an issue upon them by this, his fourth, replication? Had he supposed no issue could be made upon the facts alleged, he would have made an issue of law thereon by a demurrer. These torts are pleaded by way of set-off or recoupment against the notes, and the plaintiff denied them -- he made them, by his replication, a material subject of inquiry. He now insists, if the plaintiff did these acts, case is the proper remedy for damages by the landlord, and the only remedy, except there be a special contract against such acts, or for delivery of the possession in a certain condition, which is not shown by the record.

This leads to the inquiry, what is the true construction of the contract to deliver the possession of the premises to the landlord? It is averred in the plea, that the premises were to be delivered up “in as good condition as the same were then,” whereas, by the agreement in evidence, the plaintiff agreed “to deliver up full and complete possession of the lands,” and this does not imply, that the premises should be in the same good condition. Is this so? It is usual, in contracts of lease, to stipulate, that at its termination the premises shall be delivered up in as good repair as when they were leased, natural deterioration and decay excepted; but, is not this a fair implication, without those words? And, does not the replication admit they were to be surrendered as they were when the agreement was made? In an ordinary lease, the law will imply covenants against paramount title, and against such acts of the landlord as destroy the beneficial enjoyment of the premises. Wade v. Halligan, 16 Ill. 508. And it is a well recognized rule, that contracts should receive a reasonable interpretation, according to the intention of the parties entering into them, if the intention can be gathered from their language. Crabtree v. Hagenbaugh, 25 Id. 233. Can the intention of these parties be doubted or misunderstood? Was it not contemplated by both, in the absence of express covenants, that the delivering up full and complete possession of the land, included the house, cistern and orchard, as they were at the time the agreement was executed, natural decay and inevitable accident excepted? It requires no argument or authority to show this; it is too plain for either, and it is admitted by the replication.

As to the argument of appellee, that the torts charged could not be given in evidence, and, therefore, evidence relating to them was properly rejected, this court held, it was not necessary, that the opposing claims should be of the same character in order to an adjustment in one action by recoupment. A claim originating in contract may be set up against one founded in tort, if the counter claims arise out of the same subject matter, and are susceptible of adjustment in one action. Stow v. Yarwood, 14 Ill. 424; Brigham v. Hawley, 17 Id. 38; Conger v. Fincher, 28 Id. 347.

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