Lipschultz v. Robertson

• Decision Date: 27 November 1950
• Docket Number: No. 31717,31717
• Citation: 95 N.E.2d 357,407 Ill. 470
• Parties: LIPSCHULTZ et al. v. ROBERTSON et al.
• Court: Illinois Supreme Court

Page 357

95 N.E.2d 357

407 Ill. 470

LIPSCHULTZ et al. v. ROBERTSON et al.

No. 31717.

Supreme Court of Illinois.

Nov. 27, 1950.

Jerome Johnson, and Erwin M. Pearl, both of Chicago, for appellants.

Jack Edward Dwork, of Chicago (Harry G. Fins, Chicago, of counsel), for appellees.

SIMPSON, Chief Justice.

This case is before us on a certificate of importance granted by the Appellate Court to review its judgment, by a divided court, reversing one of the municipal court of Chicago in favor of the appellants in an action for the recovery of rent. Judgment for rent was entered in the Appellate Court.

The appellees, M. S. Lipschultz, Isidore Lipschultz and Annette Coven, doing business as 745 West Van Buren Street Building, as landlords, took judgment by confession an a lease against the appellants, R. I. Robertson and Lee Stremlau, doing business as Precision Electric Company, as tenants, for $720 as rent for the months of April and May, 1949. Unon petition of appellants the judgment was vacated, and they were allowed to defend. They pleaded the ownership of the property in the city of Chicago, notice by the city of Chicago to vacate the premises, and actual vacation of the premises pursuant thereto. The sufficiency of the notice to vacate is questioned by appellees. The case was tried before the court without a jury, upon a stipulation of facts.

The facts disclose that the second floor of the premises in question was leased by appellees to appellants for a term beginning November 1, 1946, and ending October 31, 1951; that two months' rent was deposited in advance and was to be applied to the last two months of the term; that the lease contained the following clause: 'In the event of sale of the building, new purchaser may cancel this lease by giving (60) days' notice in writing to the lessee;' and that the city of Chicago acquired title to the building by warranty deed from the appellees bearing date September 30, 1948.

On October 25, 1948, the commissioner of subways and superhighways of the city sent a letter to the appellants which read:

'Our program of construction of the Northwest Route in which the property you now occupy at the above address is located, will require the removal of all buildings in this area early in 1949.

'We are advising you of our plans now in order that you will have additional time to relocate before formal demand is made for the building.

'We are rapidly acquiring property in this area and each month shows an increase in the number of firms who are looking for new locations. For this reason, we think it will be to your advantage to relocate as soon as possible.'

So far as the record shows, this notice was never repudiated or withdrawn by the city. Appellees do not question the right of the city to cancel the lease.

October 27, 1948, the city of Chicago executed a lease to the appellees for the entire building in question for a term beginning November 1, 1948, and ending April 30, 1949. On April 1, 1949, a second lease was executed by the city to appellees for a term commencing May 1, 1949, and ending October 31, 1949. These leases authorized the subletting of the premises by the lessees, but made no reference to the existing relationship between the city and appellants.

March 31, 1949, the appellants wrote a letter to the department of subways and superhighways of Chicago which read:

'Pursuant to your letter of October 25, 1948, setting forth that the removal of all buildings in this area are to take place early in 1949, we have relocated and hereby notify you that the premises occupied by Precision Electric Company will be vacated on or before May 1, 1949.

'We would appreciate your acknowledging receipt of this notice confirming these understandings.'

A copy of this letter was also sent to 745 West Van Buren Street Building. April 4, 1949, the department acknowledged receipt of appellants' letter of March 31, 1949, directed them as to the delivery of the keys to the property, and requested that the city be notified one week in advance of the final moving. This letter of acknowledgment indicates that the city still regarded its notice to appellants of October 25, 1948, effective, acquiesced in the contemplated removal and directed to whom the keys should be delivered when the premises were vacated.

Appellees, through letters of their attorney, dated April 2, 1949, April 13, 1949, and May 4, 1949, respectively, advised the appellants, in substance, that the notice of the department was insufficient to terminate the lease, that their lease was not with the city; that no notice had been given to them in any manner cancelling the lease by their proper lessors and that the lease was in force and effect.

Appellees contend that the letter of the commissioner of the department is wholly ineffective to terminate the original lease, for the reason that it specifies no date on which the premises are required to be vacated, nor does it formally demand possession of the premises. In fact, the letter itself precludes the thought that it is a formal demand for possession, when its says: 'in order that you will have additional time to relocate before formal demand is made for the building.' This letter of the commissioner was...