Mendel v. Fink

• Decision Date: 31 October 1880
• Citation: 8 Ill.App. 378,8 Bradw. 378
• Parties: EDWARD MENDELv.HERMAN FINK.
• Court: United States Appellate Court of Illinois

8 Ill.App. 378

8 Bradw. 378

EDWARD MENDEL

v.HERMAN FINK.

Appellate Court of Illinois, First District.

October Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed March 1, 1881.

This was a proceeding by Mendel, the appellant, upon a distress warrant issued Feb. 3, 1879, for $335, as rent due from appellee Fink upon a demise by the former to the latter of stores No. 129, 131, 133, Van Buren street, and No. 26 Pacific Avenue; also rooms on 2nd floor of 127 Van Buren street, in the city of Chicago; which warrant was executed and returned to the clerk of the county court, and to which Fink, under the statute, filed the pleas of nil debet, and no rent in arrear. Upon the trial before this court and a jury, Mendel gave in evidence a lease under seal, made April 8, 1879, whereby he leased all of said premises, except the rooms on the second floor, to Fink, from May 1, 1878, to April 30, 1879, which lease was executed by Fink, by which he covenanted to pay $1,560, as the rent, payable in monthly installments at the end of each month of $130 each; he also covenanted that he had received the demised premises in good order and condition, and that all plumbing, water-pipes, gas-pipes, and sewerage should be at his risk. Evidence was given tending to show that the rooms on the second floor were rented by parol at $10 per month; and that for the whole there was rent in arrear to the amount of $335.

For the defendant, evidence was given tending to show that he occupied two of said stores--one for a sample-room, the other for a restaurant. Store No. 129, he had sub-let to one Bergheim, who was a dealer therein in clothing; that several times during defendant's occupancy under said lease, dirty and bad-smelling water came down from a water-closet above (where the same was located was not shown) upon defendant's table among his guests; into the kitchen while cooking was being done; into his bar and on his billiard tables; in consequence of which plastering fell, breaking his dishes; his property was damaged and business broken up. And against the objections of plaintiff, evidence was given tending to show the amount of damage sustained, with the view of recouping the same from the claim for rent. The defendant was also permitted, against the objection of plaintiff, to prove that after he had sub-let 129 to Bergheim, the goods of the latter were injured by the same means; and he, making a claim against defendant for damages, such claim was compromised at $50, which defendant paid Bergheim. This evidence was apparently given to enhance defendant's damages, and there was no evidence tending to show that defendant was liable to Bergheim for any damage of the kind to him. There was no evidence tending to show any fraud on the part of Mendel at the time of making the lease, or contract on his part to keep the demised premises in repair; neither was there any evidence beyond the fact of the water coming down, tending to show negligence on his part in respect to the water-closet or pipes in the other apartments of the building, either as to their construction or use. No instructions were asked or given on behalf of the defendant; and all those asked for plaintiff were given except one, as follows:

“If the jury believe from the evidence that the defendant leased the premises described in the written lease introduced, and that by the terms of such lease the defendant agreed that “all plumbing, water pipes, gas pipes and sewerage” should be at his own risk, and that while he was in the occupancy of said premises his goods and property were damaged by reason of an overflow of water coming from the plumbing or water pipes on the floor above, the one occupied by the defendant, and that such overflow was either an accident, or caused by some third party, then they are instructed that such damage of the defendant, if any, cannot be set off or recouped against the plaintiff's claim for rent, and they must find for the plaintiff, and in arriving at the amount they must not deduct any sum for such overflowing.”

The jury found for the defendant; and the court, overruling plaintiff's motion for a new trial, gave judgment on the verdict, and the plaintiff appealed to this court.

Mr. JOHN G. REID, for appellant; that recoupment will be allowed whenever an action for damages arising out of the subject-matter of the suit can be sustained, cited Peck v. Brewer, 48 Ill. 54; Burroughs v. Clancey, 53 Ill. 30.

The burden of proof is on the party setting up recoupment: East v. Crow, 70 Ill. 91.

A lessee is not released from payment of rent because the premises are injured during the tenancy: Peck v. Ledwidge, 25 Ill. 109; Gridley v. City of Bloomington, 68 Ill. 47; Chicago v. O'Brennan, 65 Ill. 160; Taylor's Land. and Ten. § 4.

No liability can attach unless it appear the landlord agreed to make repairs, or the damage was caused by the act, procurement or omission of the landlord or his agent: Taylor v. Bailey, 74 Ill. 178.

Generally, against the right of defendant to recover damages: 1 Addison on Torts, 240; Morgan v. Smith, 70 N. Y. 537; Gilhooley v. Washington, 4 Const. 217; Moore v. Goodell, 34 N. Y. 527; Olmstead v. Burke, 25 Ill. 86.

Mr. JAMES LANE ALLEN, for appellee; as to the right to recoup damages against a claim for rent, cited Lynch v. Baldwin, 69 Ill. 210; Pepper v. Rowley, 75 Ill. 262; Lindley v. Miller, 67 Ill. 244; Streeter v. Streeter, 25 Ill. 155; Leadbeater v. Roth, 25 Ill. 587; Wade v. Halligan, 16 Ill. 507; Wright v. Lattin, 38 Ill. 293

McALLISTER, P. J.

Recoupment of damages arising out of the same transaction, is in the nature of a cross-action. In order to a defense to the claim of plaintiff below for rent, by way of...