Humiston, Keeling & Co. v. Wheeler

• Decision Date: 24 October 1898
• Citation: 175 Ill. 514,51 N.E. 893
• Parties: HUMISTON, KEELING & CO. v. WHEELER.
• Court: Illinois Supreme Court

175 Ill. 514

51 N.E. 893

HUMISTON, KEELING & CO.

v.WHEELER.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Action by Charles G. Wheeler against Humiston, Keeling & Co. From a judgment of the appellate court (70 Ill. App. 349) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Flower, Smith & Musgrave, for appellant.

Sigmund Zeisler, for appellee.

CARTWRIGHT, J.

Appellee obtained a judgment in the superior court of Cook county against appellant for $3,750, the balance due, by the terms of a lease, for the rent of certain premises in Chicago from March 13, 1891, to May 1, 1892, after crediting $2,400 received by appellee from other tenants, to whom he rented the premises during a portion of said period after their abandonment by appellant. The judgment has been affirmed by the appellate court.

The arguments in this court are devoted largely to questions of fact, such as whether the premises rented were totally destroyed by a fire on March 13, 1891, and whether there was a surrender of the lease and an acceptance by the plaintiff as landlord, and whether the taking possession by the plaintiff constituted an eviction. These questions were involved in the trial court and appellatecourt, but have now been conclusively settled in favor of plaintiff by the judgment of the appellate court.

At the conclusion of the evidence for the plaintiff the defendant moved the court to instruct the jury to find the issues for defendant, and the motion was denied, but defendant then proceeded to offer evidence in its behalf, and the motion was not renewed or an instruction asked at the close of all the evidence. The motion was therefore waived. Railway Co. v. Velie, 140 Ill. 59, 29 N. E. 706;Railway Co. v. Red, 154 Ill. 95, 39 N. E. 1086. The question of the sufficiency of the evidence to sustain a verdict was not raised as a question of law, and we are precluded from considering questions of fact, as such. We must confine ourselves to such assignments of error as we are authorized to pass upon, and can only consider the evidence or facts proved in their relation to such assignments.

Only one ruling of the court during the trial is pointed out and complained of in the argument. This alleged error was in permitting plaintiff to prove that after the fire which occurred in the premises the defendant rented other quarters and made a lease for the same. As already said, it is argued here that there was an eviction by the plaintiff, and both parties agree that that question was in issue before the jury. Upon that issue it was an important question whether the tenant had abandoned the premises before the expiration of its term and before the entry by the plaintiff. In order to constitute an eviction, the tenant must abandon the premises on account of the act of the landlord, and, if defendant had already abandoned them, the entry by plaintiff would not constitute an eviction. In case of an abandonment without fault of the landlord or in consequence of his act, he may re-enter, and again rent the premises, and credit the lessee with the proceeds, and his so taking possession does not relieve from the payment of rent. 12 Am. & Eng. Enc. Law, 751; Wood, Landl. & Ten. § 477. The evidence was that plaintiff rented to defendant Nos. 143 and 145 Lake street, in Chicago, from May 1, 1890, to May 1, 1892, with the exception of office room on the second floor, the fourth story, and stairs connecting with the front east door, and a space in the rear of the basement, 10 by 20 feet, for grinding purposes, which were retained by plaintiff. Plaintiff was also to have the right to grind drugs by the use of the gas engine, and was to pay one-fifth of the cost of running it. If water gave out in the fourth story he was to be allowed to pump sufficient water by the use of the engine, and both parties were to have common use of the elevator. Defendant agreed to pay $4,800 a year as rent, in monthly installments of $400, one half in cash, and the other half in drugs. At the expiration of the lease the premises rented were to be returned to plaintiff in as good condition as when entered upon, loss by fire or unavoidable accident or ordinary wear excepted. On the leased premises there was a building of five stories and a basement, with a frontage of 30 feet, and running back from the street 165 feet, out of which the portions stated were excepted. Defendant occupied the premises from May 1, 1890, until March 13, 1891, when most of the interior of the building was burned out. The walls remained intact. The roof and fifth story were destroyed. Some of the flooring at the front and rear of the fourth floor remained. The third had a few feet more at the back end, and 12 or 13 feet at the front end, on which goods, desks, and shelves were left. Of the second floor, about 25 feet remained in the rear and about 45 or 50 feet at the front end. The first floor was not burned, but was covered by débris from the floors above, which had fallen upon it, and the basement was not burned. The building was rendered unfit for occupancy by this condition, and defendant left it. Before the evidence objected to was offered, plaintiff had testified, without objection, that shortly after the fire he informed one of defendant's officers that he had let the contract for repairing the store, and...