Harms v. McCormick

• Decision Date: 31 October 1889
• Parties: HARMS et al. v. McCORMICK et al.
• Court: Illinois Supreme Court

132 Ill. 104

22 N.E. 511

HARMS et al.

v.McCORMICK et al.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

Millard F. Riggle, for appellants.

S. P. McConnell, for appellees.

BAKER, J.

In this action of assumpsit on a demise of real estate the appellees recovered judgment for $3,000, in the circuit court of Cook county, against Henry Harms and John Marck wardt. From a judgment of affirmance in the appellate court of the first district an appeal is prosecuted to this court. The substance of the declaration is that the plaintiff below, William G. McCormick, Emma L. Smith, Anna R. Blair, and Lucy V. McCormick, sue for that they heretofore demised certain described premises in the city of Chicago to the defendants, for a designated term and at a stated rent, and that $5,000 of such rent is in arrear and unpaid, by reason whereof defendants became liable to pay to plaintiff's said $5,000 rent specified in the lease, and, being so liable, in consideration thereof, undertook and promised to pay the same. The trial court admitted in evidence, over the objections of appellants, a certain lease dated January 19, 1885. The party clause of said instrument is: ‘Between William G. McCormick, for himself and as agent of Mrs. Emma L. Smith, Anna R. Blair, and Lucy V. McCormick, party of the first part, and John Marckwardt and Henry Harms, parties of the second part.’ In said instrument the party of the second part covenants and agrees ‘with said party of the first part, his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for said premises, the sum of $5,200,’ etc.; and there are no covenants therein that indicate that William G. McCormich contracted in the name or on behalf of Emma L. Smith, Anna R. Blair, and Lucy V. McCormick, or either or any of them. The ad testimonium clause is as follows: ‘In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. W. G. McCORMICK. [Seal.] JOHN MARCKWARDT. [Seal.] HENRY HARMS. [Seal.]’ The objections made to the introduction in evidence of this instrument were (1) that it is void upon its face, and (2) that there is a variance between it and the lease or demise stated in the declaration.

1. The contention of appellants that the lease is absolutely void is not well founded. The evidence shows that appellees are tenants in common of the demised premises; William G. McCormick being the owner of an undivided one-fifth interest therein, Emma L. Smith the owner of an undivided one-fifth interest, and the other two appellees the owners of the other three-fifths interest. So, William G. McCormick, in executing the instrument, was not acting wholly as a mere agent, but at least in part for himself as a principal; and in any event the demise was effective to convey his one-fifth interest in the property. Where an agent has power to make leases under seal, for a term of years, he ought to make them in the name of his principal, and not in his own name; for his agency gives him no interest or estate in the lands, and he cannot convey from himself that which he does not have, and in order to work a transfer or conveyance he must act under the power and in the name of his principal; and, if the execution of the instrument is in his own name only, then it makes no difference that his representative character is disclosed in the body of the instrument. 5 Bac. Abr. ‘Leases,’ I 10; Frontin v. Small, 2 Strange, 705; 2 Ld. Raym. 1418; Mears v. Morrison, Breese, 223; Pensonneau v. Bleakley, 14 Ill. 15;Speer v. Hadduck, 31 Ill. 439. Here the lease is signed and sealed only in the name of one of the appellees, and, while it is his deed, yet it is not and does not purport to be either signed or sealed by or to be the deed of either of the other three appellees. The words, ‘for himself, and as agent of Mrs. Emma L. Smith, Mrs. Anna R. Blair, and Lucy V. McCormick,’ found in the party clause, indicate it was at first contemplated these three parties would join with William G. McCormick in its execution, but they did not do so, either by their own act or that of their agent. There must be mutuality in contracts, and, if one party is bound, the other party to the agreement must also be bound; and here William G. McCormick, who executed the contract in his own name as party of the first part, was bound, and so there was reciprocity in the agreement. He ‘demised and leased’ the whole of the premises described in the lease, and put appellants into possession, and they held and enjoyed them, without let or hindrance, until they voluntarily abandoned the same.

The words ‘demise’ and ‘demised’ in a lease import a covenant on the part of the lessor of good right and title to make the lease, and also imply a covenant for quiet enjoyment. 5 Amer. Eng. Cyclop. Law, 538, tit. ‘Demise,’ note 1, and authorities cited therein; Gazzolo v. Chambers, 73 Ill. 75. In this case it is manifest there was no breach of the covenant for quiet enjoyment; and, even if there was a breach of the covenant that the lessor had such title as enabled him to give a good lease of the premises, yet, as appellants both secured possession of the premises under the lease, and remained in the quiet enjoyment of the same, the damages to be assessed for such breach, if any were claimed, would be but nominal.

The rule which is relied upon by appellants in avoidance of the lease, that sealed instruments must be executed in the name of the principal, and purport to be sealed with his seal, is purely technical, and while, as many titles depend upon it, it ought not to be abrogated, yet it should not be extended beyond the decided cases, and the principle upon which they are based. In all of the cases cited by appellants a failure of the agent or attorney to execute the donated...