Forshey v. Johnston

• Decision Date: 08 June 1971
• Docket Number: Gen. No. 11366
• Parties: Lloyd F. FORSHEY and Verna Forshey, Plaintiffs-Appellants, v. Clarence JOHNSTON and Lillian Johnston, now Lillian Johnston Grossman, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 81

271 N.E.2d 81

132 Ill.App.2d 1106

Lloyd F. FORSHEY and Verna Forshey, Plaintiffs-Appellants, v. Clarence JOHNSTON and Lillian Johnston, now Lillian Johnston

Grossman, Defendants-Appellees.

Gen. No. 11366.

Appellate Court of Illinois, Fourth District.

June 8, 1971.

Rehearing Denied July 6, 1971.

T. G. Knappenberger, Jr., Champaign, for plaintiffs-appellants.

Phillips, Phebus & Tummelson, Urbana, for defendants-appellees; Hurshal C. Tummelson and Joseph W. Phebus, Urbana, of counsel.

SMITH, Presiding Justice.

Lloyd F. Forshey, plaintiff husband, a tenant farmer, recovered a jury's verdict against his landlord for $4,500.00 as damages when the plastering in the sitting room of the tenant farmhouse fell on him and injured him. His wife likewise sued for loss of consortium and the jury returned a verdict of $0.00. The trial court set aside the verdict and entered a judgment in favor of the defendants and against each of the plaintiffs notwithstanding the jury verdict. The court's action was predicated upon the proposition that a promise on the part of the landlord to repair took place two years after the original oral leasing and was accordingly without consideration and was therefore 'nudum pactum'. The trial court likewise entered a conditional judgment that if his judgment n.o.v. was set aside, then a new trial was granted to the plaintiff wife. Plaintiffs appeal.

The landlord-tenant relationship here reviewed is one that was not to infrequent in a former era. The plaintiff's father became a tenant in 1912 and died in 1947. The plaintiff-son moved on the farm and carried on. The farm was owned by Lee Johnston and his wife in joint tenancy. Lee died in 1957, his wife died in 1962, and the present defendants received this land by virtue of their mother's will. It is not surprising that there is no written lease.

The plaintiff testified that a 4 8 section of plaster fell from the sitting room ceiling as he was seated in a chair on the east side of the room where, in moments of leisure, he had sat for more than 22 years and that it just did not occur to him to move his chair to a safer place even though in December preceding the accident he had told one of the defendants that the plastering was coming loose. Apparently in December, there was a sag of some three inches along the east side of the wall which may have extended to four inches at or about the time of the accident.

So far as we can determine there is no testimony as to who made the repairs following the death of the defendants' father in 1957. The record is clear that no repairs were made since the two defendants came into possession in 1962. Since 1957 and in all probability for some time before, the relationship between the landlord and tenant was a tenancy from year to year by operation of law. Ordinarily the mere relationship of landlord and tenant creates no obligation on the landlord to make repairs and absent an express covenant or stipulation binding him to make repairs or to keep the property in repair his obligation is absent. 24 I.L.P. Landlord and Tenant, § 281. Where a landlord was not originally under obligation to make repairs an agreement to repair a porch after a rail was broken off was nothing but a mere gratuity and was nudum pactum. Quinn v. Crowe, 88 Ill.App. 191; 24 I.L.P. Landlord and Tenant, § 281. It seems to follow therefore that before the plaintiff can recover in this case, he must establish that there was a covenant or an agreement by the landlord to keep the premises in repair made at the time of the original leasing and there being no evidence in this record of any change it is presumed that the terms of the hold-over lease are the same as the terms of the original leasing.

Lloyd Forshey on direct examination testified that when he started to operate the farm he had an understanding or agreement with reference to a division of the crops on the farm, the payment for fertilizer and the repairs to the farm home. He testified that that agreement was 'the crops was all 50--50 and he (meaning defendants' father), he agreed to keep up the building, the residence, which I done some work on for myself so far as that goes * * * he said he would keep the house up in good, livable condition and that's one job that the man did.' On cross-examination, however, his own testimony casts a bit of a blur upon when the arrangement was made and stated 'Oh, I think I have lived there about, about two years when he was out there'. Asked if he had any conversation when he first moved on the place regarding the upkeep of the premises, he stated 'the only thing he told me that he would keep the house in repair. Q. This was about two years after you moved on? A. That's right. * * * Q. I see, I follow that this time that he said he would keep up the house, it was about two years after you moved in. A. That's right.' The defendant, Lillian Johnston Grossman, called as an adverse witness under section 60 of C.P.A., Ill.Rev.Stat.1967, ch. 110, § 60, stated 'I did not specifically discuss any changes with Mr. Forshey or agree upon any changes with him.' The defendant, Clarence Johnston, likewise stated 'I do not know what the arrangements were between my father and Lloyd Forshey with reference to the maintenance of the farm residence. My Dad did all the maintenance work. After my sister and I took over the operation, I did not specifically discuss a change from what my Father did or what I would do on the specific point of the maintenance and repair of the farmhouse, but we did discuss what we...