Kelly v. Galbraith

• Decision Date: 19 October 1900
• Citation: 186 Ill. 593,58 N.E. 431
• Parties: KELLY et al. v. GALBRAITH.
• Court: Illinois Supreme Court

186 Ill. 593

58 N.E. 431

KELLY et al.

v.GALBRAITH.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Suit by Fannie D. Galbraith, executrix of William A. Galbraith, deceased, against Thomas Kelly and others. From a judgment of the appellate court (87 Ill. App. 63) affirming a decree for complainant, defendants appeal. Affirmed.Moses, Rosenthal & Kennedy, for appellants.

Geo. A. Gary (F. J. Partridge, of counsel), for appellee.

This is a bill filed March 5, 1895, by William A. Galbraith, since deceased, against the appellants, Thomas Kelly, John Kelly, and James Kelly, composing the firm of Thomas Kelly & Bros., for the reformation of the lease hereinafter mentioned, and for the correction of a mistake in the description of the premises thereby demised, as hereinafter stated. The appellants, who were the defendants below, filed an answer to the bill, and replication was filed to the answer. Orders of reference were made to one of the masters in chancery of the court below, who reported conclusions of fact, sustaining the allegations of the bill, accompanying the report with the proofs taken by him. Hearing was had, and a decree was entered ordering the reformation of the lease as prayed, and ordering appellants to pay to appellee a certain sum of money for rent due by the terms of the lease, together with interest. An appeal was taken from the decree of the circuit court, confirming the master's report and overruling the exceptions thereto, to the appellate court, which has rendered a judgment affirming the decree of the circuit court. The present appeal is prosecuted from such judgment of affirmance.

The bill alleges that the complainant therein, William A. Galbraith, of Erie, Pa., being the owner of the building situate at the northeast corner of Franklin and Madison streets, in Chicago, fronting 80 feet on Madison street and 170 feet on Franklin street, remodeled the same by erecting thereon a six-story and basement building; that during the remodeling of the premises, and on February 6, 1892, he executed a lease of a store and basement in said building, known as ‘123 Franklin Street,’ for a term of five years from May 1, 1892, to April 30, 1897; that, through a mistake of the scrivener, the premises were described as ‘129 Franklin Street,’ and ‘he’ was written for ‘they’ in the second word of the fourth covenant of the lease; that the rent reserved for said store and basement in said lease was the sum of $10,500 for said term, payable in equal installments, of $175 each, in advance, upon the 1st day of each and every month of said term; that all the terms and provisions of said lease were fully agreed to by the parties, and a written lease, containing the same, and bearing date February 6, 1892, was prepared in duplicate, except that said store and basement were, by the inadvertence or mistake of the clerk of scrivener who prepared the lease, erroneously described therein as store and basement known as ‘129 Franklin Street’; that said entire building, when reconstructed, had one main entrance thereto on Franklin street, and the store and basement so leased fronted on Franklin street, and ‘were and are the first store and basement north of said main entrance, and ever since the making and completing of the same by means of said reconstruction have been and still are known as ‘No. 123 Franklin Street”; that the lease was executed in duplicate by Thomas Kelly & Bros. and by Galbraith, and a duplicate retained by each of the parties; that at the beginning of said term said firm, whose members are the appellants herein, entered into the sole and exclusive possession and occupation of said store and basement, and continued to occupy the same until the filing of the bill herein; that said firm paid to complainant in the bill the rent for said store and basement at the rate agreed upon, $175 per month, from May 1, 1892, up to and including December 31, 1894; that although the rent for January, February, and March, 1895, had become due and payable, the lessee firm had not paid it, or any part thereof, but refused and still refuses so to do, and offered to lessor pretended excuses for their refusal, and demanded of such lessor, as a condition of further payment of rent, that the rate of rental should be reduced to $125 per month; that there was not then, and has not since been, such a store number as 129 on Franklin street, and that there are no premises known as ‘129 Franklin Street’ in Chicago; that, from the execution of the said lease, complainant believed the same to be correct, and never discovered the mistake in said description, nor the other mistake, until about February 14, 1895, when they were by chance jointly discovered by one of the complainant's agents, and also by complainant's solicitor; that, after the discovery thereof, complainant requested said lessees to join with him in the correction of said lease, and of said mistakes therein, but that said lessees wholly refused to join for that purpose, or to correct said lease; that appellants refused to pay the rent reserved as aforesaid. The relief prayed by the bill is the correction of the mistake, and the reformation of the lease so that the description of the property demised therein would read ‘the store and basement known as ‘123 Franklin Street,’ Chicago, Illinois,' and by changing the word ‘he’ to ‘they’ in one of the covenants. There was also a prayer that the appellants ‘be decreed to pay to your orator all the aforesaid rents which shall have accrued to your orator and remain unpaid at the time of entering such decree, and that your orator have execution therefor.’ The bill also prayed ‘that your orator may have such other and further relief as shall be agreeable to equity, and to your honors shall seem meet.’

In their answer, filed May 25, 1895, the appellants admitted the ownership of the complainant, the reconstruction of the building, and the execution of the lease on February 6, 1892, for a portion of said premises, consisting of a certain store and basement therein, with steam heat, and the use of the elevators and closets jointly with the other tenants of the building. But in their answer appellants deny that the portion of said premises leased to them were ever known as ‘123 Franklin Street,’ but aver that the portion so leased to them was the store and basement planned to be immediately opposite No. 128, on the west side of Franklin street, and that the store and basement corresponding with said number on the west side would be 129 Franklin street. In their answer appellants deny that the store and basement leased to them were ‘the first store and basement north of the main entrance on Franklin street,’ and aver that the store and basement so leased to them were the store and basement corresponding to 129 Franklin street. The answer admits that the rent reserved and terms of payment are as stated in the bill; and the answer further denies that the words, to wit, ‘said store and basement being the first north of the Franklin street entrance,’ were in said lease when the same was signed; that the appellants never assented to the insertion in said lease of any such provision. The answer also denies that ‘No. 129 Franklin street’ was inserted by the inadvertence or mistake of the clerk or scrivener who prepared the lease, but that the same was inserted knowingly, understandingly, and correctly. The answer admits that a correct copy of the lease, as it was executed by appellants, is attached to the bill, except as to the words ‘said store and basement being the first north of the Franklin street entrance.’ It avers that after February 6, 1892, and prior to May 1, 1892, the plan of reconstruction was, without the consent of the appellants, changed, and that complainant did not construct a store and basement at No. 129 Franklin street, but constructed a store and basement opposite No. 122 Franklin street, at No. 123 Franklin street, and that defendants were compelled to and did enter into the exclusive possession and occupation of the store and basement No. 123 Franklin street, and have ever since continued to occupy the premises and have paid the rent required by the lease to be paid for No. 129; that they were compelled to occupy said premises and pay the rent by reason of the wrongful conduct of the complainant in neglecting to construct a store and basement at No. 129 Franklin street, opposite No. 128 Franklin street. The answer admits that appellants had refused to pay the rent for January, February, and March, 1895, but denies that they ever so refused upon any trivial or pretended excuse. The answer admits that when said lease was executed there was not in fact any such store as No. 129 Franklin street. The answer avers that down to February 14, 1892, the appellants were unaware that the words ‘said store and basement being the first north of the Franklin street entrance’ were in such lease; that their attention had never been called to said interpolation; that, down to said last-named date, they relied upon the lease as containing the covenants and agreements between them and complainant, and for the first time on said day discovered the said interpolation.

On June 12, 1895, an order of reference was taken to a master in chancery, to take proof and report the same, with his opinion on the law and the evidence. The master made a report, dated June 24, 1896, which was filed July 20, 1896, finding the allegations of the bill to be true, and also finding that there was due to the complainant therein, as rent of said premises from January 1, 1895, to July 1, 1896, $3,325, and recommending that the prayer of the bill be granted. Objections were filed to this report of the master, and overruled by the master, and stood as exceptions. On November 13, 1897, an order was entered re-refering the cause to the master, to take proofs in regard to the payment of rent since December, 1894...