Price v. Pittsburg

• Decision Date: 30 April 1864
• Citation: 1864 WL 2963,34 Ill. 13
• Parties: PHILIP J. PRICE, impleaded, etc.,v.PITTSBURG, FORT WAYNE AND CHICAGO RAILROAD CO.
• Court: Illinois Supreme Court

34 Ill. 13

1864 WL 2963 (Ill.)

PHILIP J. PRICE, impleaded, etc.,

v.PITTSBURG, FORT WAYNE AND CHICAGO RAILROAD CO.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

The nature of the action and the evidence are sufficiently stated by the court.

The following instructions were given for the plaintiff, to the giving of which defendant excepted.

(1) As to the lot purchased by plaintiff from Lemuel Crawford, if the jury believe, etc., that defendant had, before the purchase by the plaintiff from said Crawford, occupied the same under a parol lease at a rate agreed upon between Crawford and defendant, and with the express understanding that if said lot should be sold to plaintiff at any time during the term of lease, no deduction should be made for the occupation by said company of the right of way across said lot for the remainder of the term, and that defendant held over after the expiration of said term without any new agreement than the law implies, and the jury will so find that the same rate of rent shall be paid for said lot by defendants after as before said purchase; and the jury will not take into consideration the alleged condition and want of repair of the dock of said lot, without proof of an express covenant to put or keep the same in repair by plaintiff or its grantor.

(2) As to the lot purchased by plaintiff of Singer & Talcott; if the jury believe, etc., that defendant occupied said lot after the purchase of the same by plaintiff, then plaintiff is entitled to recover for such use and occupation in this action, what the evidence shows the same to have been worth, if that was the agreement with Talcott, and they were holding under such agreement; and if the evidence shows that during the time the said premises were so occupied by defendant, the plaintiff had occasion to use and did use a part of said lot for tracks for its road, then the jury will allow to the plaintiff the full value of the whole lot up to the time of such occupation of part, and for the remainder of the time during which the lot was occupied by defendants, they will allow whatever the same was worth after such occupation of part.This is so, if it was the understanding that, in case the railroad should conclude the trade and give the bonds, that then they might take the possession of such parts of the lots as they might need, allowing to the tenants the right to occupy the balance of the lot, paying therefor a reasonable rent.

The following instructions requested by defendant and numbered 1, 2, 3, 4 and 5, were disposed of as follows: Instructions 1, 2 and 3 were refused, and 4 and 5 were refused as requested, but given with the qualifications indicated by brackets, thus, [ ], to which refusal and qualifications the defendant excepted.

(1) If the deeds conveying the lots in question, were delivered to Winston upon condition that they should not take effect until the bonds for the purchase money were delivered, then plaintiff cannot recover any compensation for the use and occupation of either of said lots, before the bonds given for such lots respectively were delivered.In other words, the plaintiff can only recover for the time that it had the title, and its title only dates from the time when the conditions upon which the deeds were delivered were performed.

(2) If the jury believe, etc., that no price nor time of payment was agreed on, between the owners of the lots and defendant, for the rent for the year in question, but that the understanding was that it was to be a reasonable rent; and if they further believe, etc., that the deeds for the respective lots in question were deposited with Winston on condition not to become operative to convey the title, nor to be delivered to the company or be put on record, nor any use made thereof, unless and until the bonds to be given by the company were made and delivered to the respective owners of the lots, but were held as an escrow by Winston until that event, then plaintiffs cannot recover for any rent which had accrued previous to that time, although the deeds were when the bonds were delivered, to take effect as of the 1st May, 1860.

(3) If the jury believe, etc., that defendants were in the the fall of 1859, at the time of the conversation spoken of by Cobb, tenants from year to year, and were then holding over with the assent of Crawford for the year from May 1, 1859, to May 1, 1860(and entitled to the possession of said lot for that time), at the rate of $1,200 a year, and Cobb and Price did make an agreement for that year at $1,200, and Price agreed the railroad might go through without charge or deduction, such agreement would not bind Price to let the road go through without charge or deduction, and would not control the right of the defendants in that respect for the year from May 1, 1860, to May 1, 1861.

(4) If the landlord, before the expiration of the lease or tenancy, against the consent of the tenant, evicts or expels the tenant from all or any substantial part of the premises leased, the tenant is discharged from the payment of any rent from the time of such eviction, and is not bound to payment for what he continues to occupy after such eviction.If there is no agreement to the contrary, the tenant is entitled to the possession of the premises without interruption or molestation by the landlord; and, if the jury believe, etc., that defendant was tenant from year to year, and entitled to the possession of the premises in question from May 1, 1860, to May 1, 1861, and that against defendant's consent, and in the absence of any [understanding or] agreement permitting it, the railroad company [wrongfully] took possession of part of said lots for their railroad track, and continued to hold and use the same until May 1, 1861[and evicted defendant therefrom], then such an eviction by the railroad company works an extinguishment of all rent for said premises from the time of its occurrence, notwithstanding defendant continued to occupy the residue of said lots until May 1, 1861.[But if it was the understanding that the railroad might put its track across the lots in the event of its electing to do so on completing its purchase, and defendant held under that understanding, then putting down the track after such purchase would not amount to an eviction.]

(5) Physical and forcible expulsion is not necessary to constitute an eviction; but any act on the part of the landlord which deprives the tenant of the beneficial enjoyment of the premises amounts to an eviction.[This is so, if the act was done in violation of the rights of the tenant.]

The following instructions were given for defendant, as requested:

(1) If the jury believe, etc., that defendant occupied the lots in question from May 1, 1860, to May 1, 1861, under an understanding or agreement with the owners thereof, that they should pay only a fair and reasonable rent therefor, the jury, in determining what was a fair and reasonable rent, should take into consideration the condition of the docks, and the occupancy by the railroad for their track and switches.

(6) If the jury believe, etc., that Mr. Foss (on May 1, 1860) told defendants that they might occupy the property in question, for a fair or reasonable rent, for the year from May 1, 1860, to May 1, 1861, and that he was authorized by plaintiff to do so, and defendants assented thereto, then defendants are not liable to pay the sum of $1,200 a year for the Crawford lot, if its rent was not reasonably worth that for said year, although they may believe, etc., that Price did, in the fall of 1859, agree with Cobb to pay $1,200 a year.

(7) If the jury believe, etc., that the defendants occupied the lots in question from May 1, 1859, to May 1, 1860, under a lease for that year from the then owners of the lots, and that defendants continued to hold over and occupy the premises after May 1, 1860, with the assent of such owners, without any agreement before that time as to how they should occupy the lots, the defendants would be entitled to hold the premises for another year from May 1, 1860; and in the absence of any understanding or agreement permitting it, the plaintiff could not lawfully expel or dispossess them until May 1, 1861.

(8) If the jury believe, etc., that no price or time of payment for rent was agreed upon, but it was understood or agreed that the rent was to be for the year in question, only a reasonable rent, and that defendants occupied the premises in question on May 1, 1860, and thereafter till May 1, 1861, for a coal yard and for the coal business, and rented the lots for that purpose, and the owners of the lots knew, when they rented the premises, that they were to be used in that business, then the jury, in determining what the rent should be, should consider what the rent of the premises was worth in that particular business, and may take into account such inconvenience or interruption, if any, to that kind of business as occurred in consequence of the condition of the docks and the use of the portion of the lots by the railroad company for a track.

The assignments of error were:

(1) In giving said instructions for plaintiff.

(2) In the refusal and qualification of said instructions requested by defendant.

(3) In denying defendant's motion for a new trial, and rendering...