Field v. Herrick

• Decision Date: 31 March 1882
• Citation: 10 Ill.App. 591,10 Bradw. 591
• Parties: MARSHALL FIELD ET AL.v.LAVINIA HERRICK ET AL.
• Court: United States Appellate Court of Illinois

10 Ill.App. 591

10 Bradw. 591

MARSHALL FIELD ET AL.

v.LAVINIA HERRICK ET AL.

Appellate Court of Illinois, First District.

March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed May 9, 1882.

This was an action of covenant to recover rent upon a lease alleged to have been made by appellees to appellants, for the premises known as Nos. 130 and 132 Wabash avenue, for the term of two years from March 1, 1878. The declaration was in the usual form, and alleged that there was rent due and in arrear in the sum of $2,583.32, non-payment of which was assigned as the breach of the covenant, upon which suit was brought. Issues were joined upon a plea of non est factum, and various special pleas.

To the defendants' fourth plea, the plaintiffs demurred. The court sustained the demurrer, and the defendants stood by their plea. The plea is as follows: “And for a further plea in this behalf as to the supposed breaches of covenant in said declaration mentioned, these defendants say, actio non, etc., because they say that neither they nor their assignees have ever received possession of said premises, in and by said indenture stated to have been demised to them, and that at the time when said term, by said lease or indenture, attempted to be granted to these defendants, commenced, to wit, on the first day of March, A. D. 1878, said defendants and their assigns were kept out of possession of said premises by the plaintiffs, and neither these defendants nor their assignees were able to obtain possession of said premises, by reason whereof said premises became of no use or value to these defendants or their assigns, and said indenture in said declaration mentioned was annulled, canceled, and set aside, and the said defendants, if ever bound thereby, were released therefrom; and this the defendants are ready to verify, etc.”

There was a jury trial upon the issues joined, resulting in a verdict for the plaintiffs for $3,010.36. The plaintiffs remitted $34.64, and the defendant's motion for a new trial being overruled, the plaintiffs had judgment for $2,975.76. The defendants appealed to this court.

Mr. JOHN H. THOMPSON, for appellants; that a withholding by the landlord of possession of the premises from the tenant is a good defense to an action for rent, cited Dexter v. Manley, 4 Cush. 14; Wade v. Halligan, 16 Ill. 507; Berrington v. Casey, 78 Ill. 317.

Generally, as to the creation of an agency: Story on Agency, §§ 17, 19, 47, 54; F. & M. Bank v. D. & B. Bank, 16 N. Y. 145; Summers v. Solomon, 90 E. C. L. 879.

Agency may be presumed from repeated acts of the agent, adopted and confirmed by the principal: 1 Parsons on Contracts, 49; Maclean v. Dunn, 4 Bing. 722; Morris v. Tilson, 81 Ill. 607; C. & St. L. R. R. Co. v. Mahoney, 82 Ill. 73.

As to presumption of ratification by silence of principal: Bell v. Cunningham, 3 Pet. 69; Brigham v. Peters, 1 Gray, 139.

Authority to act as agent may be inferred from circumstances: Paris v. Lewis, 85 Ill. 597; R. R. I. & St. L. R. R. Co. v. Wilcox, 66 Ill. 417.

Declarations of an agent in all matters within the scope of his duties, are binding upon the principal: Cook v. Hunt, 24 Ill. 535; Allin v. Millison, 72 Ill. 201; I. & St. L. R. R. Co. v. Miller, 71 Ill. 463.

Mr. J. V. LE MOYNE, for appellees; that an objection to evidence that can be obviated by further proof, should be specific, or it will not be ground for a reversal, cited Stone v. Great West. Oil Co. 41 Ill. 85; Graham v. Anderson, 42 Ill. 514; Howell v. Edmunds, 47 Ill. 79; Moser v. Kreigh, 49 Ill. 84; Sanford v. Obrecht, 49 Ill. 146; Osgood v. Blackmore 59 Ill. 261; Stookey v. Stookey, 89 Ill. 40.

WILSON, P. J.

It is unnecessary to pass upon any of the errors assigned except the first, which calls in question the action of the court in sustaining the demurrer to the defendants' fourth plea. That plea alleges, in substance, that when the term granted in the lease commenced, the defendants were kept out of possession of the premises demised by the plaintiffs, and that neither they...