Goldberg v. Pearl

• Decision Date: 21 February 1923
• Docket Number: No. 14682.,14682.
• Parties: GOLDBERG v. PEARL.
• Court: Illinois Supreme Court

306 Ill. 436

138 N.E. 141

GOLDBERG

v.PEARL.

No. 14682.

Supreme Court of Illinois.

Feb. 21, 1923.

Forcible entry and detainer by Isaac Goldberg against William M. Pearl. A judgment for plaintiff was reversed by the Appellate Court (224 Ill. App. 622), and he appeals.

Affirmed.

Appeal from Appellate Court, Second District, on Appeal from Lake County Court; Perry L. Persons, Judge.

Ralph J. Dady and Eugene M. Runyard, both of Waukegan, for appellant.

Cooke, Pope & Pope, of Waukegan, for appellee.

DUNCAN, J.

On May 26, 1921, appellant, Isaac Goldberg, began suit in forcible entry and detainer against appellee, William M. Pearl, in the county court of Lake county, to recover possessionof a theater building and the premises upon which it was situated in Highland Park. A plea of not guilty was filed by appellee, and upon the hearing before the court without a jury judgment was rendered for Goldberg. On appeal to the Appellate Court for the Second District the judgment was reversed without remanding the cause. The Appellate Court granted a certificate of importance and an appeal to this court.

There is no controversy as to the facts, which were stipulated by the parties. They are the following:

On July 21, 1913, appellant leased the premises to appellee from October 1, 1913, to September 30, 1918, at a rental of $100 per month. Appellee paid appellant under the terms of the lease $1,000, which was to be retained by appellant until the last 10 months of the lease as security for the performance by appellee of the contract, and was to be then applied as rent for the remaining period of the lease. Appellant was to pay 5 per cent. interest on said deposit, and in case appellee neglected or refused to comply with any terms or conditions of the lease and continued so to do after 60 days' notice in writing, appellant might then apply the deposit in liquidation of damages sustained because of such breach. On July 23, 1913, two days after the lease was entered into, the parties entered into an additional agreement, by which the building was to be enlarged and the rent increased to $150 per month. This lease contained the following provision:

‘Said building to be used and occupied as a family theater, for the presentation of wholesome, moral attractions, including moving picture exhibitions, and not otherwise.’

On October 1, 1913, appellee entered into possession of the building and used it as a theater from that time until July 21, 1917. On that date he closed the building, and has not used the premises, or any part thereof, as a family theater since, but has kept the doors of the same locked, and appellant has at all times been aware of that fact. By the terms of the lease appellee was to have the option of renewing the lease, provided he exercised his option on or before March 30, 1919. On August 22, 1918, after appellee had exercised his option according to the terms of the lease, appellant wrote appellee a letter in which he said:

‘You can have my theater for five years more, as long as you pay me $150 per month, and I fix the doors when you want to open my theater again.’

On January 15, 1920, and February 1, 1920, appellee notified appellant to fix the doors to the theater building, as he wanted to open the theater and display wholesome moving pictures therein, and appellant replied after each notice that he would fix the doors; but he did not do so, or make any attempt to fix them. Appellee paid his rent promptly, and appellant continued to accept it without any objection up to and including the month of September, 1920. On September 29, 1920, appellant served notice on appellee that because of his failure to occupy the building as a family theater he would declare the lease terminated unless appellee used it as a family theater according to the terms of the lease, on or before November 20, 1920, and on December 23, 1920, he served notice upon him for immediate possession. Appellant accepted the rent for October and November, but on December 1, 1920, he refused to accept payment of the rent for that month when tendered to him. Appellee deposited the rent for that month in the Highland Park State Bank to the order of appellant. On December 24, 1920, appellant commenced an action of forcible entry and detainer against appellee in the county court of Lake county. During the pendency of the suit appellee continued to tender the rent as it became due, and deposited it in the bank subject to appellant's order. On March 2, 1921, appellant dismissed his suit and accepted all rents then due. Two days afterward, and also on March 10, 1921, he notified appellee to comply with the provision of the lease on or before ...