Goldberg v. Cosmopolitan Nat. Bank of Chicago

• Decision Date: 15 November 1961
• Docket Number: No. 5356,D,No. 48177,5356,48177
• Citation: 33 Ill.App.2d 83,178 N.E.2d 647
• Parties: Samuel C. GOLDBERG, Plaintiff, Counterdefendant, Appellant, v. COSMOPOLITAN NATIONAL BANK OF CHICAGO, Trustee under Trustefendant, Counterplaintiff, Appellee. Gen
• Court: United States Appellate Court of Illinois

Page 647

178 N.E.2d 647

33 Ill.App.2d 83

Samuel C. GOLDBERG, Plaintiff, Counterdefendant, Appellant, v. COSMOPOLITAN NATIONAL BANK OF CHICAGO, Trustee under Trust

No. 5356, Defendant, Counterplaintiff, Appellee.

Gen No. 48177.

Appellate Court of Illinois, First District, Third Division.

Nov. 15, 1961.

Koven, Koven, Salzman & Homer, Chicago, Sheldon O. Collen, Robert Rosenman, Herbert O. Nelson, Chicago, of counsel, for appellant.

Benjamin Ordower and Nathan Wolfberg, Chicago, for appellee.

SCHWARTZ, Justice.

Plaintiff brought a suit for a declaratory judgment with respect to his rights as lessee under a lease, claiming he had been wrongfully evicted by defendant from a substantial portion of the premises. He sought an injunction restraining defendant from instituting any other legal proceedings and damages in the sum of $150,000. Defendant filed a counterclaim, seeking possession of the premises leased and a judgment for rents past due and such as might become due. In an action for forcible detainer in which lessor was plaintiff and lessee was defendant, the Municipal Court of Chicago found for lessee. Lessee contends that the finding in that case constituted a prior adjudication of the issues in the instant case. To avoid confusion, we will hereinafter call the parties lessor and lessee. The principal questions presented to us concern the remedy of a lessee evicted from a portion of premises demised, and what is necessary to invoke the defense of res judicata.

The trial court entered two decrees, one on March 25, 1960 entitled 'final decree,' and one four days later, March 29, 1960, entitled 'interim decree.' The 'final decree' allowed lessor's counterclaim for rent in the sum of $9,675, gave lessee five days in which to pay and reserved the matter of the issuance of a writ of assistance. The writ of assistance was subsequently issued and lessee was evicted and is no longer in possession of any portion of the premises. The court, over lessee's objection, also found that there was no just reason for delaying enforcement or appeal of the judgment and decree rendered. The so-called 'interim decree' found that the premises demised by the lease included all of a parking lot; that lessor had taken possession of a portion thereof, excluding lessee from its use; that lessee had been damaged in his right to use of the total premises; and that lessee should have a jury trial, as had been requested by him, to determine his damages, and for that purpose referred the cause to the Executive Committee for reassignment.

The finding in the 'interim decree' that lessor's action constituted a retaking of possession of the premises demised to lessee stands as the law of this case until reversed or modified by appeal or other appropriate legal proceeding. The result of the two decrees is that lessee, who instituted the suit, is found to have a valid claim against lessor, but since the amount of his damages is as yet unascertained by a jury, he cannot set off such damages against lessor's judgment for rent. Thus he was evicted by court order for failure to pay rent at a time when, for aught that now appears, lessor may owe him more than the amount of the rent. The injustice of such a result is appellant.

The basis for the trial court's conclusion, as it appears from the 'interim decree,' is that the retaking of possession of a portion of the demised premises was not utilized by lessee as ground for his rescission of the lease, but instead lessee reaffirmed the lease by resisting a suit for possession in the Municipal Court of Chicago and thereafter continued to keep possession of the balance of the demised premises. It apparently was the trial court's opinion that under the law, lessee upon being partially evicted was required to rescind the lease and to rely upon a claim for damages caused by the eviction. The law does not support that position.

Under the prevailing law, a lessee upon eviction from a portion of the premises may continue in possession of the remainder, and payment of rent is suspended even though he does so continue in possession. An eviction in the sense in which it is thus used must of course be something of a serious and substantial character done by the landlord with the intention of depriving the tenant of the enjoyment of the premises. Hayner v. Smith, 63 Ill. 430, 433-435; Smith v. Wise, Stigleman & Co., 58 Ill. 141; 24 I.L.P. Landlord and Tenant § 331, p. 533; General American Life Ins. Co. v. North American Mfg. Co., 320 Ill.App. 488, 51 N.E.2d 619; Smith v. McEnany, 170 Mass. 26, 48 N.E. 781; Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370, 372-73, 117 N.E. 579; Carlson v. Levinson, 228 Ill.App. 104; 52 C.J.S. Landlord and Tenant § 480, pp. 240-242. The decision in Smith v. McEnany, supra (opinion by Mr. Justice Holmes) stated that this was in accordance with the law of England as well as of Massachusetts, the main reason therefor being that enjoyment of the whole consideration is the foundation of the debt, and that the obligation to pay cannot be apportioned. Moreover, Justice Holmes felt that the same view naturally would be taken if the question had been raised for the first time because the 'land is hired as one whole. If by his own fault the landlord withdraws a part of it he cannot recover either on the lease or outside of it for the occupation of the residue.' In Fifth Ave. Bldg. Co. v. Kernochan, supra, a vault beneath an adjoining sidewalk was included in the demised premises, and the lessee was evicted from the vault. Justice Cardozo summed up the doctrine thus, 117 N.E. p. 580:

'Eviction as a defense to a claim for rent * * * suspends the obligation of payment either in whole or in part, because it...