Palmer v. Meriden Britannia Co.

• Decision Date: 20 December 1900
• Citation: 59 N.E. 247,188 Ill. 508
• Parties: PALMER v. MERIDEN BRITANNIA CO.
• Court: Illinois Supreme Court

188 Ill. 508

59 N.E. 247

PALMER

v.MERIDEN BRITANNIA CO.¹

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, First district.

Action by the Meriden Britannia Company against Eugene P. Palmer. From a judgment of the appellate court (88 Ill. App. 485) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.McCordic & Sheriff (E. A. Harriman, of counsel), for appellant.

Wilson, Moore & McIlvaine, for appellee.

This is an action of assumpsit brought on August 21, 1895, by the appellee, the Meriden Britannia Company, against appellant, Eugene P. Palmer, and one C. Marion Hotchkin upon or under a certain lease dated April 1, 1884. The action is based upon that clause of the lease herein set forth which provides for the payment of $5,000 at the end of the term. The original declaration consisted of two counts. On January 19, 1898, appellee (the plaintiff below) filed two additional counts, and also the common counts for goods sold and delivered; for money lent and advanced, paid, laid out, and expended; for money had and received, and due and owing for interest and forbearance; for the value of work and materials; and also for amount due upon accounting. On March 21, 1899, plaintiff below, by leave of court, amended its declaration by filing two additional counts. The plea of general issue was filed to the original declaration and to the declaration as amended. The defendant C. Marion Hotchkin died during the pendency of the action before the trial, and the suit was continued against the other defendant, Eugene P. Palmer, alone. By agreement of the parties the cause was submitted to the court for trial without a jury. The court was asked by the defendant below (the appellant here) to hold certain propositions of law in the decision of the case. Some of these propositions were marked ‘Held’ by the court, and others were marked ‘Refused.’ The appellee (plaintiff below) submitted no propositions to be held by the court as law in the decision of the case. Propositions numbered 2 and 4 asked by the appellant were refused by the court as asked, but were modified by the court, and, after being so modified, were marked ‘Held’ by the court. The issues were found by the court against the defendant below, and a motion for a new trial made by the latter was overruled. The court then rendered judgment in favor of the plaintiff below (the present appellee) for the full sum of $5,000, with interest at the statutory rate from May 1, 1895, amounting at the time of the rendition of the judgment to $5,990.98, to which finding and judgment of the court the defendant excepted. An appeal was taken from the judgment so rendered to the appellate court. The appellate court has affirmed the judgment of the circuit court, and the present appeal is prosecuted from such judgment of affirmance.

By the terms of the lease executed under seal by said Hotchkin and Palmer, as parties of the first part, and the Meriden Britannia Company, a corporation of Connecticut, as party of the second part, Hotchkin and Palmer leased to said company a certain piece of ground in the city of Chicago, having a west front on State street, between Monroe and Madison streets, and designated as No. 147 State street, for a term of 10 years and 1 month, beginning on April 1, 1885, and ending on April 30, 1895. Therein appellee, the second party, agreed with the first party to pay them as rent for the premises the sum of $833.33 per month, payable monthly during the whole of the term, on the last day of each month, amounting for the whole term to the sum of $100,833.33. The appellee company therein agreed that it would before May 1, 1887, erect and complete on said land a good, substantial, and tasteful brick store building, at least five stories high, and suited to the locality, at a cost of not less than $20,000, to have a handsome ornamental front of stone or iron, or with such material combined with brick or terra cotta, with plateglass windows in front, as is used in first-class stores in the same vicinity. The lease contained the following provision: ‘Internally said building will be constructed without center columns if the omission of such columns will not entail an extra cost exceeding $1,500.00, and the lofts must be of sufficient strength to carry heavy storage. The main floor will be of hard lumber laid upon pine sheeting, and the floors of the lofts will be of white pine laid upon a sheeting of common pine. The whole of the basement will be cemented on the bottom with Portland cement. All walls and ceilings will be properly lathed and plastered or ceiled, and proper conductors from the roof will take the water therefrom to the proper sewer connection, so that no injury can occur to such building from such water.’ The lessee agreed to place therein a boiler and engine for heating the building and for running a passenger elevator. The lessee also agreed to keep the building, during the term, in as good condition and repair as when completed, ordinary wear and tear and natural decay alone excepted. The lessee was to make use of the party walls on the north and south sides of the ground, and to pay whatever might be necessary for using the same, and, if the same should be rendered unfit for use, to replace the same, etc. The lessee also agreed that no business should be carried on in the building except a mercantile business of the general character of that done on State street between Madison and Adams streets, unless with the consent of the lessors, and that no portion of the premises should be used for gambling, or for immoral purposes, or for the sale of liquor. The lessee agreed to keep the building insured during the term to the amount of at least $15,000, and to cause the loss, if any, to be made payable to the lessors, and to deliver the policies for such insurance to the lessors. The lease also provided that, in case of damage or loss by fire during the term, the lessee, its successors and assigns, would erect and finish on the land a new building ‘on the same general plan, of the same dimensions and in all respects as good as that damaged or destroyed, and to that end the lessee, its successors and assigns, will be entitled to all the insurance moneys paid on such loss, to apply on such rebuilding.’ The lessee also agreed to pay all taxes and assessments and water rates levied on the building and improvements to be erected during the term. The lease also provided that if the lessee should not by May 1, 1887, have fully completed the building, then for each month after that time until said completion it should pay the monthly rent, and also a further sum monthly equal to said monthly rent for damages for the delay, until the completion of the building. It was also therein provided that, should the lessee fail to make payments for insurance or taxes or assessments or water rates, the lessors might pay the same and treat such payment as additional rent, and, should the lessee fail to pay the rent due from it to its lessors, then said lessors might, at their option, advance the same, and deduct the amount so advanced from the next payment of rent due on the lease. In the event that the leasehold interest should be terminated, the lessors agree to pay the lessee the full cash value of the improvements placed upon it. It was also agreed that all payments to accrue from time to time to the lessors should be a first lien upon the building.

The lease in question contains the following provision, upon which the present suit is brought, to wit: ‘And at the end of the said term, if the said lessee shall have duly fulfilled all its covenants and agreements herein contained, and if the said building to be erected as aforesaid, and maintained or renewed as aforesaid, shall remain on such ground in the condition above stipulated for, then the said parties of the first part will pay to the party of the second part, its successors or assigns, the sum of five thousand dollars ($5,000.00) for such building, with its fixtures and appurtenances as aforesaid, on being put in possession thereof.’ Therein the lessee agreed to keep the premises in a clean and wholesome condition, as provided for by the city ordinances, and to observe all ordinances respecting protection from fire. It was also provided in the lease that at the end of the term, if the lessors should decide to relet the said premises for another term, ‘then the party of the second part, if it shall have performed all its covenants herein contained, shall have the preference in obtaining such new lease over all other parties, if it shall pay or secure the payment of the full amount of rent which said premises will then bring.’ It was also provided that if the rent should be unpaid on the day when due, and for thirty days thereafter, ‘or if default shall be made for the period of thirty days in the performance of any of the covenants or agreements herein contained, to be kept by the party of the second part, its successors or assigns, then it shall be lawful for the parties of the first part, their representatives or assigns, at their option, and without notice to the party of the second part, its successors or assigns, to declare said term herein demised ended,’ and to re-enter and remove the lessee and repossess the premises; and ‘in such event the building, with its fixtures and appurtenances, to be erected on said land by the party of the second part, shall become the absolute property of the parties of the first part, without any right of the party of the second part to demand or recover from the parties of the first part any compensation whatever therefor.’ It was also provided that nothing therein contained should be held in any manner to preclude the lessors from declaring the lease thereby created, with or without notice to the lessee, to be at an end, if default should be made for the period of 30 days in the performance of any of its covenants and...