Heims Brewing Co. v. Flannery

• Decision Date: 30 March 1891
• Citation: 27 N.E. 286,137 Ill. 309
• Parties: HEIMS BREWING CO. v. FLANNERY et al.
• Court: Illinois Supreme Court

137 Ill. 309

27 N.E. 286

HEIMS BREWING CO.

v.FLANNERY et al.¹

Supreme Court of Illinois.

March 30, 1891.

Appeal from appellate court, third district.

M. Millard, for appellant.

Martin D. Baker and F. G. Cockrell, for appellees.

BAILEY, J.

This was a suit commenced before a justice of the peace by Mary Flannery and Patrick Flannery against the Heims Brewing Company, to recover certain moneys claimed to be due and owing from the defendant to the plaintiffs at the time of the commencement of the suit, upon the following instrument: ‘This article of agreement witnesseth that Mary Flannery and Patrick Flannery (her husband) have this day rented to the Heims Brewing Company, of East St. Louis, St. Clair county, Illinois, in the present condition thereof, the one-story and basement frame saloon building situated on the east side of Fourth street, on parts of lots 24 and 25, block 3, Piggott's addition to the town of Illinois, (now East St. Louis,) * * * for the period of five years, from the first day of September, 1887, on the following terms and conditions, to-wit: For the use and rent thereof the said Heims Brewing Company hereby promise to pay said Mary Flannery and husband, or to their order, three thousand dollars for the whole time above stated, and to pay the same in installments of fifty dollars each, at the end of each month, the first payment to be made October 1, 1887; that they will repair all injuries or damages done to the premises by him or them during their occupancy, or pay for the same; that all of their property, whether subject to legal exemption or not, shall be bound and subject to the payments of rents, and damages thereof, that they will take good care of the buildings and premises, and keep them free from filth, from danger of fire, or any nuisance, and from all uses forbidden in any fire insurance policy issued thereon, and protect, defend, and indemnify the said Mary Flannery and husband from all damages and charges for such; that the houses and premises shall be kept clean, fairly treated, and left so; that, in default of the payment of any one installment of rent for ten days after the same becomes due, they will, at the request of the said Mary Flannery, quit and render to them the peaceable possession thereof, but for this cause the obligation to pay shall not cease; and finally, at the end of said term, they will surrender to said Mary Flannery and her husband, their heirs or assigns, the peaceable possession of the said house and premises, with all the keys, bolts, latches, and repairs, if any, in as good condition as they received the same, the usual wear and use and providential destruction or destruction by fire excepted. The said lessee, and all holding under him, hereby engage to pay the rent above reserved, and double rent for every day he, or any one else in his name, shall hold on to the whole, or any part, of said tenement after the expiration of the lease, or its forfeiture for non-payment of rent,’ etc. ‘It is further agreed that, in case of the building becoming untenantable from fire, the lessor will refund pro rata any rent paid in advance for the unexpired term, or in case of partial damage by fire, and lessor fails to repair within a reasonable time, then the lessee shall pay no rent until the building is repaired, or the lessee may terminate the lease; and it is further understood and agreed that said Mary Flannery or husband are neither to engage in the saloon business in the First ward during the existence of this lease, neither will they allow any such business carried on in or on any other property which they may own in the First ward, and that they will not sell any of said property, unless with the agreement that no liquor business will be carried on; this is also to apply to any property they may hereafter purchase during the continuance of this lease. It is hereby understood that the lessee is to pay the water license, according to the rules and regulations of the water department. In witness whereof the parties have set their hands and seals to two copies hereof, to be retained by each of the parties hereunto to receive one copy. Dated this first day of September, 1887.’

Said instrument was executed by both parties under their hands and seals, and on the 1st day of December, 1887, by way of modifying said instrument, they executed under their hands and seals a further agreement, the terms of which were as follows: ‘Whereas, Heims Brewing Company leased certain premises from Mary Flannery and P. Flannery, her husband, on the first day of September, 1887, for a term of five years, in which it was stipulated that the said Mary Flannery and the said P. Flannery should not engage in the saloon or liquor business for a period of five years, nor permit any one else to do so on premises owned or controlled by them in the First ward of the city of East St. Louis, Ill., without the consent of the said Heims Brewing Company; and whereas, the said Mary Flannery and P. Flannery, her husband, are desirous of engaging in the saloon business on lot 1, block 3, of the platted town of Illinois, situated in said First ward, or renting said premises for that purpose, and have agreed to take all beer needed in conducting a saloon on the lot mentioned from said Heims Brewing Company: Now, therefore, this agreement witnesses that the said Mary Flannery and P. Flannery shall have the right to conduct a saloon on said lot, or lease the same to any other person for that purpose, so long as they or such persons shall purchase all beer used in carrying on such business from the said brewing company until the said five years shall have expired.’

All the moneys due on said instrument prior to August 1, 1889, were paid by the defendant; the installments for May, June, and July, 1889, having been sued for by the plaintiffs in the city court of East St. Louis, and recovered of the defendant by the judgment of that court, and said judgment having been satisfied by payment. On the 17th day of August, 1889, the defendant, by its agent, tendered to the plaintiffs the keys of the premises described in said...