John Smith Et Ux. v. Wise

• Decision Date: 31 January 1871
• Citation: 58 Ill. 141,1871 WL 7883
• Court: Illinois Supreme Court
• Parties: JOHN SMITH et ux.v.WISE, STIGLEMAN & CO.

58 Ill. 141

1871 WL 7883 (Ill.)

JOHN SMITH et ux.

v.WISE, STIGLEMAN & CO.

Supreme Court of Illinois.

January Term, 1871.

WRIT OF ERROR to the Alton City Court; the Hon. HENRY S. BAKER, Judge, presiding.

Mr. WILLIAM S. FIELD, for the plaintiffs in error.

Mr. CHARLES P. WISE, for the defendants in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

There were three actions brought by the same plaintiffs, against the same defendants, really, for they claimed in the same right, before a justice of the peace, in the city of Alton, for the monthly rent of certain premises, in that city, in which judgments were rendered for the plaintiffs. On appeal to the City Court by the defendants, on their motion, and by consent of plaintiff's attorney, the causes were consolidated and tried by a jury. The verdict was for the defendants, and judgment accordingly. To reverse this judgment, plaintiffs prosecute a writ of error, and make several points. The first is, as the jury were about to retire, the attorney for the defendants handed to one of the jury a paper, introduced as evidence in the cause, purporting to be the admission or statement of what Mrs. Smith, one of the plaintiffs, would testify if before the jury, and that the paper was taken by the jury and was before them in their deliberations.

This paper was equivalent to the deposition of Mrs. Smith, and could not properly be taken by the jury in their retirement. Rawson v. Curtiss, 19 Ill. 456. It is not such a paper as when read to the jury, may be, under section 30 of the practice act, taken by them in their retirement. But the objection made comes too late. The affidavit of these facts appears to have been made by the plaintiffs' attorney, and he must have known the fact at the time, as an eye witness; knowing it, he should then have brought it to the notice of the court by objecting. Not having so done, it is now too late to urge the objection.

Plaintiffs in error complain of the refusal of the court to give the instructions which they had framed, but gave, in lieu thereof, instructions framed by the court. Those instructions embrace the law of the plaintiffs' case, and were all they were entitled to have. It is further complained that the court gave the instructions asked by the defendants.

The defense to the action was, that before the expiration of the term for which the premises were leased, the plaintiffs had, without the consent of the defendants, taken possession of a large part of them, thereby virtually evicting them. The evidence tends to establish this fact, and the instructions were as follows:

First. The rule of law is, that what one does by an agent is the same as if done by himself, and if the jury believe, from the evidence in this suit, that John H. Smith was the agent of his wife, Elizabeth Smith, then whatever said John H. Smith may have done within the scope of his agency, as her agent, was the same as if done by herself.

Second. The principle upon which a tenant is required to pay rent, is the beneficial enjoyment of the premises, unmolested in any way by the landlord; and if the jury believe, from the evidence in this suit, that the plaintiff took possession of any part of the premises leased by her to the defendants, against their consent, then in law it is an eviction, and releases the defendants from the payment of any more rent, and they will find for the defendants.

Third. Forcible expulsion is not necessary to cause an eviction; any act done in violation of the rights of the tenant, without his consent, will amount to an eviction. If the jury believe, in this case, that the plaintiff, after making this lease, without the consent of the defendants, took possession of a part of said demised premises, then, in law,...