Morrison v. Herrick

• Decision Date: 31 October 1889
• Citation: 130 Ill. 631,22 N.E. 537
• Parties: MORRISON et al. v. HERRICK et al.
• Court: Illinois Supreme Court

130 Ill. 631

22 N.E. 537

MORRISON et al.

v.HERRICK et al.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

S. K. Dow, for appellant Morrison.

L. H. Boutell, for appellants Miner, Beal & Co.

Smith & Forch, for appellees.

BAILEY, J.

In this case, Harry Herrick and Charles K. Herrick filed their bill in chancery against Edward W. Morrison to compel the specific performance by him of an oral agreement alleged to have been made on or about June 1, 1884, for a lease for a term of five years from May 1, 1885, of a certain store and basement known as ‘No. 115 East Madison Street,’ Chicago. George A. Miner and others, comprising the firm of Miner, Beal & Co., were also made parties defendant; it being alleged that said Morrison had fraudulently executed to them a lease of said premises, and had entered into an unlawful and fraudulent conspiracy with them to eject the complainants therefrom, and to deprive them of their right to the possession and enjoyment thereof. The bill prayed that said lease to Miner, Beal & Co. be held to be subject to the complainants' rights, and inoperative as against them, and that said Miner, Beal & Co. be restrained from interfering with the complainants' possession of said premises. Defendant Morrison answered, denying said oral agreement, and setting up the statute of frauds, and also admitting that he had demised said premises, together with certain other premises thereto adjoining, to Miner, Beal & Co. for the term of five years from May 1, 1886. Miner, Beal & Co. answered, and filed their cross-bill, asserting the validity of said lease to them, and the priority of their rights thereunder, and praying that the complainants in the original bill be decreed to surrender and deliver up said premises to them. A demurrer to the cross-bill was sustained, and the cause coming on for hearing, as to the original bill, on pleadings and proofs, a decree was rendered in accordance with the prayer of said bill. Said decree was affirmed by the appellate court, and the record is now brought here on appeal from that court.

It appears that Edward W. Morrison is, and for many years has been, the owner of a four-story business building on the northeast corner of Clark and East Madison streets, Chicago. The first story of said building is divided up so as to be used by several occupants for mercantile purposes; there being in addition to one or more stores on the corner, not in controversy here, three stores fronting on East Madison street, known as ‘Nos. 113, 115, and 117,’ and a double store fronting on Clark street, known as ‘131 and 133.’ For several years prior to the time said oral agreement is alleged to have been made, the complainants had occupied No. 115 East Madison street as a hat and cap store, under yearly leases executed by Morrison to them, and at the date of said oral agreement they were occupying it under a written lease for the term commencing May 1, 1884, and ending April 30, 1885; the rent reserved being $3,000, payable in monthly installments of $250 each. The allegations of the bill in relation to the making of the oral agreement, and the circumstances connected therewith, are, in substance, that the complainants, during the time they had occupied said premises, had been doing a flourishing, profitable, and constantly increasing business, and that they and their place of business had become widely known to the public; that for the purpose of retaining their position, and competing successfully with rival establishments, and of still further extending their business and patronage, it became very desirable that they should make extensive and costly improvements in their store, provided they could obtain a further lease for a sufficient length of time to warrant such expenditure; that they so informed said Morrison, and proposed to him that if he would grant to them a lease of said premises for a term of five years, to commence at the expiration of their then existing lease, they would make certain extensive and permanent improvements in said store, and would also put in new and expensive cases and fixtures, thus rendering it as fine if not the finest and most beautiful and attractive hat and cap store in the city of Chicago; that said Morrison approved of and assented to said proposition, and that it was thereupon agreed between him and the complainants that he would execute to them a further lease of said premises for the term of five years, beginning on the 1st day of May, 1885, and continuing until the 30th day of April, 1890, at a yearly rental of $3,000 for the first year, payable in monthly installments of $250, and at a yearly rental of $3,300 for each of the four remaining years, payable in monthly installments of $275 each. It appears from the evidence, without any material controversy, that, shortly after the time this agreement for a lease is alleged to have been made, the complainants proceeded to make their proposed improvements; those of a permanent character consisting of expensive panel work upon the ceiling, fresco painting on the walls, remodeling the front doors and windows, and putting in stained or cathedral glass; costing, in all, about $1,700. They also constructed new cases of hardwood and plate glass, fitted and adapted to the store, with pulleys to raise and lower the doors and sashes, and also plate-glass mirrors, fitted and adapted to the spaces which they were to occupy on the walls; the total expense of such fixtures being about $3,300. To make room for these fixtures, those previously in use, and which cost $700, were removed and disposed of for only $150; that being all they would bring. A new furnace and new gas-fittings were put in, at a cost of about $490. These expenditures were all made during the months of July and August, 1884. The time occupied in fitting up the store in the manner above indicated was from four to six weeks, and during that time the complainants' business was largely, if not wholly, interrupted, thus causing them considerable additional loss.

The evidence in relation to the alleged contract for a lease is in some degree conflicting, but, after giving it careful consideration, we are of the opinion that it is sufficient to warrant the finding of the chancellor that such contract was in fact made. We are not disposed to attempt an analysis of said evidence in detail, but shall content ourselves with the general statement that four witnesses testify positively to the making of the contract, viz., Isaac Gardner, Louis Kohn, and the complainants, and their testimony is to the effect that, some time in the latter part of May or the first part of June, 1884, they and the defendant Morrison were together in the complainants' store, and that a conversation was then and there had between Morrison and the complainants, in which the complainants stated their desire to fit up their store so as to make it one of the most attractive in Chicago, by putting into it elaborate and costly improvements and fixtures, at an expense, as they then estimated, of from $6,000 to $10,000, and that they would do so provided they could get from Morrison a lease for the term of five years from the expiration of their then existing term; that Morrison thereupon agreed with the complainants, in view of their proposed leavy expenditures, to give them a lease of said premises from May 1, 1885, to April 30, 1890, the rent to be $3,000 for the first year, and $3,300 per year for the four remaining years. The testimony of these witnesses is corroborated, in some degree at least, by the evidence of several witnesses, who testify to certain subsequent admissions of Morrison, both express and implied, which tend to show that he had rented said premises to the complainants for a term of several years. One of the complainants also testifies that about May 1, 1885, he was notifiedto go to Morrison's office to sign the lease, and that on going there he was presented with the draft of a lease for only one year, which he refused to sign, and that Morrison, on his attention being called to the fact that the draft was not in accordance with the agreement, said that it was his clerk's mistake, and that he would have it corrected. Defendant Morrison, on the other hand, testifies that no such contract as that alleged by the complainants was made, and that no such conversation as that testified to by their witnesses ever took place. His testimony, however, received but little, if any, corroboration from the other witnesses. It is in direct conflict with that of all those who claim to have been present at the time the contract is said to have been made; and the only mode in which his counsel have undertaken to bolster up his testimony is by indulging in somewhat captious criticisms upon the account of the transaction given by the complainants' witnesses, and by urging the improbability that business men like the complainants would be content to rely, in so important a matter, upon the mere oral agreement of their lessor. The chancellor who tried the cause, and who saw and heard the witnesses, reached the conclusion that the testimony of the complainants and their witnesses in relation to the contract was true; and the record, so far as we can see, furnishes no ground which can justify us in holding the contrary. Beyond what had already been stated, no effort seems to have been made by the complainants, prior to the commencement of their suit, to obtain from Morrison the execution of a lease in pursuance of his oral agreement. They claim to have been on very friendly, and even intimate, terms with him, and that they therefore trusted him more implicitly than they would have done under other circumstances. On the 30th day of April, 1885, the complainants' term under their former lease expired, but they remained in possession, and continued to pay Morrison at the rate of $3,000 per year. They claim that their possession on and...