Loach v. Farnum

• Decision Date: 30 September 1878
• Citation: 90 Ill. 368,1878 WL 10166
• Parties: GEORGE LOACHv.GEORGE A. FARNUM et al.
• Court: Illinois Supreme Court

90 Ill. 368

1878 WL 10166 (Ill.)

GEORGE LOACH

v.GEORGE A. FARNUM et al.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. H. B. STEVENS, for the appellant.

Mr. PLINY B. SMITH, for the appellees.

Mr. JUSTICE BAKER delivered the opinion of the Court:

This was a statutory proceeding of distress for rent, prosecuted by appellees against appellant, and resulting in a verdict and judgment in their favor for $841.86.

The claim of appellees was based upon a lease in writing and under seal, for the premises known as No. 74 North Halsted street, in Chicago, for a term of three years from the 1st day of April, 1872, at an annual rental of $800, payable in monthly installments of $66.66 2/3 each. On the trial appellant offered in evidence the following alleged agreement for the reduction of the rent, which was indorsed on the duplicate of the lease in the hands of appellant:

“ February 1, 1874.

We agree to take for rent of the within leased premises $55 per month instead of $66.66 as within. The reduction to commence February 1, 1874.

FARNUM & CHIDISTER.”

--and also offered to prove, in connection therewith, that for the months of February, March and April, 1874, appellees took the reduced rent of $55 per month, in full for the rent for those months respectively. The court refused to admit in evidence said indorsement on the lease and proof of such alleged payments. This action of the court is assigned as error.

It is a well settled rule of the common law, that an executory contract, under seal, can not be modified or varied by a parol agreement, and the same doctrine has frequently been announced by this court. Baker v. Whiteside, Breese, 174; Chapman v. McGrew, 20 Ill. 101; Hume Brothers v. Taylor, 63 Id. 43; Barnett v. Barnes, 73 Id. 217. In the case last cited it was expressly held, that where a lease, under seal, fixes a certain amount of rent to be paid each month, a parol agreement changing the amount of rent to be paid for the unexpired term, and leaving the lease in other respects unchanged and in force, is not binding upon the lessor, and he will, notwithstanding such parol agreement, be entitled to recover the amount of rent called for by the lease. Chapman v. McGrew, supra, was also based upon a lease under seal, and in that case it was claimed that by a written agreement, and for a consideration, the rent was reduced $200 a year; and this court there said: “The agreement for a change of the terms of this lease was not under seal, while the lease was, and, therefore, this agreement did not have the effect to release defendant from his liability on the lease.” These two cases, as also Hume Brothers v. Taylor, seem to be directly in point, and decisive of the case at bar. Appellant cites Lake v. Campbell, 18 Ill. 106, and White v. Walker, 31 Id. 423. The former case simply decides that a lease is an instrument that needs no seal to give it validity as between the parties. But, the lease in the case now before us was under seal. In very many, if not in most of the cases, both English and American, in which the doctrine under discussion has been announced, the contracts would have been perfectly valid without any seal. A seal was not essential in order to...