John Morris Co. v. Southworth

• Decision Date: 29 October 1894
• Citation: 154 Ill. 118,39 N.E. 1099
• Parties: JOHN MORRIS CO. v. SOUTHWORTH et al.
• Court: Illinois Supreme Court

154 Ill. 118

39 N.E. 1099

JOHN MORRIS CO.

v.SOUTHWORTH et al.¹

Supreme Court of Illinois.

Oct. 29, 1894.²

Appeal from appellate court, First district.

Bill for injunction by the John Morris Company against Charles H. Southworth and Edward Courtlandt Southworth, executors of John H. Southworth, deceased, Otis K. A. Hutchinson, and William M. Luff. Complainant obtained a decree on condition of paying $10,926, which decree was affirmed by the appellate court. 50 Ill. App. 42. Complainant appeals. Reversed.

Flower, Smith & Musgrave, for appellant.

Hutchinson & Luff and F. Ullmann, for appellees.

PHILLIPS, J.

Premises known as ‘118 and 120 Monroe Street,’ in the city of Chicago, were the property of John H. Southworth, of Springfield, Mass., and by him leased to the John Morris Company. The building was about 40 feet wide, by 186 feet long, and 5 stories high, and was used by the lessees in their business of printers, lithographers, bookbinders, stationers, etc., and was heated by steam pipes. The machinery used by the lessees was operated by an engine, which was supplied with steam from two tubular boilers, about 14 feet long and about 4 feet in diameter, which were placed in rear of the basement, and were owned by the landlord, and leased with the building. The lease contains, among others, the following provisions: ‘In case of loss by fire so as to render the premises untenantable, this lease may be terminated by either party hereto, unless it is mutually agreed to repair, and the same can be done in a reasonable time, so as not to utterly prevent the business from being prosecuted.’ After provision as to payment of rent, which is partly printed and partly in writing: ‘Said rent to be net above all expenditures, named or unnamed and to pay, in addition thereto, all the ground rents of said premises accruing during said term, under a certain lease thereof from C. L. Paine Freer to James S. Bassett, dated the 6th day of July, A. D. 1868, as the same shall become due and payable according to the terms of said lease; also to pay for all repairs to said building, ordinary and extraordinary, inside and outside, including the roof thereof, and all taxes levied or assessed upon said premises during said term, and all special assessments thereon levied or assessed, and which shall be due and payable during said term (including assessments made before, but payable during, said term), provided the improvements for which said assessments are levied are made during or before the beginning of said term; and the premiums for insuring said building against fire, and insuring the plate glass herein, during said term, to the amount $34,000, for the benefit of said party of the first part, in responsible companies to be chosen by him. But the party of the second part shall not be required to pay the taxes on said premises for more than three years, unless the term of this lease shall be extended. And, in case said ground rent, taxes, or premiums shall not be paid when due, the party of the first part may pay the same, and the amount so paid, with interest, shall be added to the rent, and collected as herein provided.’ ‘It is understood that the party of the second part shall not be required to repair loss or damage to said building by fire, unless such loss or damage shall be caused by its neglect, nor any loss or damage by reason of a cyclone, or the falling of said building from any cause other than the fault or neglect of said party of the second part.’ The material printed clauses are as follows: ‘And that it [party of the second part] will keep said premises in good repair * * * during the term of this lease, at its own expenses, * * * and, upon the termination of this lease in any way, will yield up said premises to said party of the first part in good condition (loss by fire and ordinary wear excepted).’ ‘In case said premises shall be rendered untenantable by fire of other casualty, the lessor may, at his option, terminate this lease, or repair said premises within thirty days; and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine.’ On the 10th of January, 1890, during the existence of the lease, one of those boilers exploded, doing much damage to the building, blowing out the glass, and tearing great holes through the first and second floors, and leaving the building without heat or power, which caused a suspension of the lessee's business, and necessitating repairs on the landlord's property, which were made at a cost of about $9,527.86. On January 12th the lessee sent a telegram to the landlord, at Springfield, Mass., informing him of the damage, and saying: ‘Will restore building at cheapest cost, and charge to your account.’ This letter was answered by one of appellees, C. H. Southworth, a son of the landlord, who said his father was not able to attend to business, and adding: ‘So please arrange to have done the necessary repairs to restore the building to its former condition.’ Other correspondence passed between the same parties. From the time of the first communication, arrangements to proceed with the repairing were made, and it was soon well in progress towards completion, and arrangements made to that end. After arrangements for its completion were made, and about February 3, 1890, C. H. Southworth addressed a letter to the lessee, asking for rent due February 1st. This letter was replied to, and lessee expressed surprise at the contents: ‘After the arrangement we made in regard to the restoration of your property rendered necessary without any fault of ours.’ Much correspondence and negotiations between the parties or the attorneys for the landlord and the tenant was had, until the death of the landlord, in January, 1891, when appellees became his executors. Thereafter as a result of threatened action on the part of the executors, the lessee filed a bill praying for an injunction against a declaration of forfeiture, and asking the court to determine who was liable for repairs, etc.

The evidence was conflicting as to the cause of the explosion, and as to the agency of Charles H. Southworth. In addition to the conclusion to be drawn from the acts of Charles H. Southworth, his answering letters addressed to his father, saying his father was not able to attend to the business, etc., and the giving directions about it, it appears that in April, previous to the explosion, John H. Southworth, in a conversation with John Morris, the president of the lessee company, stated, in substance, that he was out of health, and was not able to attend to anything, and had turned his business over to his son; that his son had control of his matters, and anything he did with the lessee, or it did with the son, would be the same as doing it with him; that anything the son did in the future would be the same as if he did it. A decree was entered, finding that the lessee had reserved from its payment of rent the sum of...