Gilchrist v. John R. Gilchrist.

• Decision Date: 31 January 1875
• Citation: 1875 WL 8190,76 Ill. 281
• Parties: DAVID GILCHRISTv.JOHN R. GILCHRIST.
• Court: Illinois Supreme Court

76 Ill. 281

1875 WL 8190 (Ill.)

DAVID GILCHRIST

v.JOHN R. GILCHRIST.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Ford county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action of covenant on a lease, brought by David Gilchrist against John R. Gilchrist. The lease was for a term of five years, commencing March 1, 1869, and provided that the lessee should plant and grow a hedge around the quarter and a hedge through the center, the same to be planted in the spring of 1870, and to be cultivated in a good and husband-like manner, and “make said hedge a good and substantial fence by the close of the term,” etc.

Mr. JOHN R. KINNEAR, for the appellant.

Messrs. GRAY & SWAN, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of covenant on a lease, brought to the Ford circuit court, assigning as breaches that the defendant did not plant and grow a hedge around the premises leased, nor divide the land into two equal parts by growing a hedge through the center thereof, nor did he cultivate the same in a husbandlike manner, nor make a good and substantial fence by the close of his term, nor did he throw up all low places along the line where the hedge was to be planted, so as to make a suitable place to grow a hedge; nor build a post and three plank fence, with posts six feet apart, where the ground was so wet as not easily drained and made suitable to grow a hedge.

The lease is set out in hæc verba in the declaration, and contains all the covenants above specified.

The defendant pleaded non est factum. 2. Performance. 3. Infancy; upon which issues were joined. The cause was tried by a jury, who rendered a verdict for the defendant, which the court refused to set aside on plaintiff's motion, and rendered judgment against plaintiff for the costs, to reverse which he appeals. The lease was from March 1, 1869, to March 1, 1874, as appears from the declaration, but it does not appear from the bill of exceptions that it was offered in evidence. The clerk has inserted in the record what purports to be a lease, but it was not in evidence, and is not a part of the record as evidence. It would follow, therefore, that the lease is not before us for examination, and what its terms may have been we have no means of ascertaining.

But, regarding the instrument described in the declaration as a covenant between these parties, the question for consideration under the plea of performance is, did the defendant perform the covenants in the lease by him to be performed?

There is no complaint of a breach of any other covenant than the covenant to make a good and sufficient hedge around the quarter section described, and to divide the...