Higgins v. Halligan
| Decision Date | 30 September 1867 |
| Citation | 46 Ill. 173,1867 WL 5353 |
| Parties | JOHN HIGGINSv.BRIDGET HALLIGAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle County; the Hon. EDWIN S. LELAND, Judge, presiding.
The facts in this case are fully stated in the opinion. Messrs. HOUGH & ELDRIDGE, for the appellant.
Messrs. BULL & FOLLETT, for the appellee.
This was an action of assumpsit, brought in the Circuit Court of LaSalle county, by Bridget Halligan against John Higgins, for the use and occupation of certain premises in the city of LaSalle.
The declaration contained four counts, the first of which describes the plaintiff as executrix of Patrick Halligan, deceased, and alleges that on the tenth day of September, 1866, and for three years prior thereto, the defendant had been her tenant from year to year, of the premises, and enjoyed the same at the yearly rent of five hundred dollars, payable quarterly; that each year of such tenancy commenced on the tenth day of September in each year, and that on the eleventh day of July, 1866, she gave the defendant written notice, declaring the tenancy to be ended on the tenth day of the then next September; that afterwards, on the 17th of July, 1866, she gave to the defendant another notice in writing, to the effect, that, notwithstanding her notice to terminate the tenancy on the tenth of September, she having been offered seven hundred dollars per annum, rent for the premises, was willing and ready to re-let them to the defendant for that sum, payable monthly or quarterly, on condition that defendant would execute a lease to that effect within five days from the 17th of July; and that if he failed so to do, and should hold over the premises after the tenth day of September, 1866, she would hold him liable for, and require him to pay for the premises, double the rent he was then paying under the tenancy terminating on the 10th of September.
The plaintiff then avers that the defendant did not surrender possession of the premises to her on the tenth of September, 1866, but held over, and still continued to hold over, notwithstanding the termination of the tenancy, the tenth day of September having long since elapsed; that she, during all the time aforesaid was entitled to the reversion of the premises, and to receive and enjoy the rents and profits thereof; and she further averred that the defendant did not and would not execute a lease for the yearly rent of seven hundred dollars, and she demands rent at the rate of one thousand dollars per annum, payable quarterly, and avers that of that sum two hundred and fifty dollars is due and unpaid.
The second and third counts declare upon a tenancy from year to year, at the yearly rent of one thousand dollars, payable quarterly, of which sum two hundred and fifty dollars was due and unpaid.
The fourth count is the common indebitatus count for the use and occupation of the premises by the defendant at his request, and which, by the sufferance and permission of the plaintiff, he had a long time held and enjoyed, and on an account stated.
The suit was brought to the February term, 1867.
A demurrer to the declaration having been overruled, the defendant pleaded non assumpsit, payment; and as to all except the sum of one hundred and twenty-five dollars, he did not undertake and promise; and as to the sum of one hundred and twenty-five dollars, he tendered the same to the plaintiff before the commencement of the suit, which she refused to accept, etc.
He also pleaded ne unques executrix.
A demurrer was sustained to the third and fourth pleas. The defendant amended the third plea by writing the words, “and now brings the same into court here, ready to pay to the plaintiff if she will accept the same,” and abided by the demurrer to the fourth plea.
Issues were made up on these pleas, a jury waived, a trial had by the court, and a finding for the plaintiff of one hundred and twenty-nine dollars and sixty cents. A motion for a new trial was overruled and exception taken, and a judgment rendered on the verdict.
To reverse this judgment, the defendant brings the record here by appeal, and insists upon these errors assigned, that the court erred in sustaining the demurrer to the fourth plea; that improper evidence was admitted on behalf of plaintiff, and that a new trial should have been awarded.
As to the first point, it will be seen, that the plaintiff does not declare as executrix, nor aver that the contract was made with her testator, but with herself, in her individual character. The suit is brought to enforce a contract made with her in her own right, and not in a fiduciary or representative capacity. Describing herself as executrix, if the count was not on a liability to her as such, is mere surplusage, the words are of no importance, and can be rejected without prejudicing the case in any way. On this point a reference to authorities is unnecessary, but see, Savage, Admr. v. Meriam et al., 1 Blackford 176; Biddle, Admr. v. Wilkins, 1 Peters, 686; Talmadge, Admr. v. Chapel et al., 16 Mass. 71; Bond v. Betts, Admr., Breese, 205; Burnap v. Wight, 14 Ill. 301; Patrick v. Rucker, 19 ib. 429.
The plaintiff made no profert of letters testamentary in her declaration, as she was suing in her own right. Brent v. Shook, 36 Ill. 125.
The acceptance by the plaintiff of one hundred and twenty-five dollars, tendered by the defendant, is urged by him as a concession that this amount was all that was due, and entitled the defendant to a judgment for costs, is the second point, made by appellant. There is no authority cited on this point, and there can be none, for the doctrine is well established, that accepting a sum tendered, if not accepted in full of all demands, does not conclude the party from proceeding for more.
In Ryal v. Rich, 10 East 47, which was an action for double rent, and for use and occupation, the defendant pleaded tender of the single rent before action brought and paid the money into court, which the plaintiff took out before the trial, and still proceeded. It was held that the acceptance of the single rent was no waiver of the plaintiff's right to proceed for the double rent, and that the plaintiff's going on with the action after taking the single rent out of court, was evidence to show that he did not mean to waive his claim for the double value, but to take it pro tanto.
To the same effect is the case of Sleght v. Rhinelander et al., 1 Johns. 192.
The next point made by the appellant is, that the notice to terminate the tenancy was not sufficient.
The lease is dated ...
To continue reading
Request your trial
-
St. Louis Smelting & Refining Co. v. Hoban
...(8th Ed.), p. 54; Bockman v. Davis, 172 Ill.App. 505; Sheriff v. Kromer, 232 Ill.App. 589; Griffin v. Knisely, 75 Ill. 411; Higgins v. Haligan, 46 Ill. 173; Rader Hoffman, 125 Ill.App. 554. (6) Reliance upon the Illinois law relating to hold-over tenants must be affirmatively pleaded. It wa......
-
Fiedler v. Eckfeldt
...on the tenth day after the notice. Ewing v. Bailey, 4 Scam. 420;Vairin v. Edmonson, 5 Gilman, 270;Bowman v. Wood, 41 Ill. 203;Higgins v. Halligan, 46 Ill. 173;Harper v. Ely, 56 Ill. 179;Forsyth v. Warren, 62 Ill. 68;Magnusson v. Williams, 111 Ill. 450;Brown v. City of Chicago, 117 Ill. 21, ......
-
White v. McFarland
...C. 238; Rider v. Duval, 28 Texas 622; Fitzhugh v. Fitzhugh, 11 Gratt. (Va.) 300; Genet v. DeGraaf, 27 App.Div. N. Y. (1898) 238; Higgins v. Halligan, 46 Ill. 173; Railroad v. Long, 160 Ind. 564; Shepard Creamer, 160 Mass. 496; Jerkowski v. Marco, 56 S.C. 241. (3) If an executor or administr......
-
Keegan v. Kinnaire
...from year to year, and such tenancy could only be terminated by sixty days' notice in writing: McKinney v. Peck, 28 Ill. 174; Higgins v. Halligan, 46 Ill. 173; Prickett v. Ritter, 16 Ill. 97; Taylor on Landlord and Tenant, 39-42; Herrell v. Sizeland, 81 Ill. 459; Dunne v. Trustees, 39 Ill. ......