Scharf v. Waters

• Decision Date: 24 April 1946
• Docket Number: Gen. No. 43549.
• Citation: 66 N.E.2d 499,328 Ill.App. 525
• Parties: SCHARF v. WATERS.
• Court: United States Appellate Court of Illinois

328 Ill.App. 525

66 N.E.2d 499

SCHARF

v.WATERS.

Gen. No. 43549.

Appellate Court of Illinois, First District, Third Division.

April 24, 1946.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Forcible detainer action by Grace M. Scharf against A. S. Waters to recover possession of a dwelling. From a summary judgment for plaintiff, the defendant appeals.

Reversed and remanded with directions.

Louis I. Shapiro, of Chicago, for appellant.

Rosenthal, Eldridge, King & Robin of Chicago (Herman L. Ellsworth and Douglass Pillinger, both of Chicago, of counsel), for appellee.

BURKE, Justice.

On May 1, 1945 Grace M. Scharf filed a verified complaint of forcible detainer in the Circuit Court of Cook County against A. S. Waters, alleging that she was entitled to the possession of the premises at 1542 Forest Avenue, Des Plaines, Illinois; that the defendant unlawfully withheld possession from her; and asking judgment for possession. Defendant filed a demand for a jury trial and a verified answer, denying that plaintiff was entitled to the possession of the premises, or that he unlawfully withheld possession, and alleging that on April 7, 1942 a written lease for the premises was made by plaintiff and defendant for the period from May 1, 1942 to April 30, 1943, at a rental of $45 per month; that he took possession on or about May 1, 1942; that the lease was renewed from year to year until April 30, 1945; and that he had been in possession as a tenant ever since. On motion of plaintiff the court struck four additional paragraphs of the answer. These paragraphs sought to set up facts showing that plaintiff was not seeking to gain possession of the premises in good faith, in accordance with the Emergency Price Control Act of 1942 and the regulation pertaining thereto. Thereafter, plaintiff filed a motion for summary judgment, supported by her affidavit, which reads:

‘That she is the widow of Charles E. Scharf, deceased, and resides at 5836 North Keating Avenue, Chicago, Illinois. That she is the plaintiff in the above entitled cause and verified the complaint filed herein; that the allegations contained in the complaint are true and correct in substance and in fact, and she incorporates the complaint in this affidavit. That the house at 5836 North Keating Avenue consists of six rooms, sunporch and two baths; that it has an 85 foot frontage on North Keating Avenue, and in the year 1944 the general taxes levied against this property were $410.92; that she formerly resided in this property with her husband, Dr. Charles E. Scharf, who died on January 22, 1943, and her son Charles E. Scharf and his wife, the undersigned's daughter, Grace E. Scharf, and her younger son, Arthur Scharf. That until she retired on the first of February, 1944, she was engaged in teaching in the Chicago Public Schools; that her son, Charles and his wife have moved into their own home; that the undersigned's daughter, Grace, is doing graduate work at Northwestern University; that her work necessitates her residing in Evanston, Illinois and that she is only home for week ends; that the undersigned's son, Arthur, will be eighteen in July and expects to enter the armed forces of the United States at or before that time. That for the foregoing reasons, she no longer requires a residence of the size of the property in which she now resides at 5836 North Keating Avenue; that she is not physically able to do the work necessary to keep up this large house and the large yard which requires frequent mowing and other attention, and it is essential that she should reduce her living expenses. That she is unable to locate smaller quarters in Chicago, but that she owns and has owned since prior to 1942, the property at 1542 Forest Avenue, Des Plaines, Illinois; that this house has five small rooms, is on a 30 foot lot, and the taxes on it for the year 1944 were $102.12; that due to the death of her husband and the fact that she is no longer teaching in the Chicago Public Schools, it is no longer necessary for her to reside in Chicago, and therefore she desires to move into and reside in this property. That the defendant, A. S. Waters, rented this property by lease dated April 7, 1942, which lease was extended to April 30, 1944, a correct photostatic copy of which is attached hereto and by reference incorporated herein; that defendant continued to reside in said premises after April 30, 1944, although no additional lease or extension agreement was executed; that on January 30, 1945 this defendant caused plaintiff to be served with a copy of notice to terminate his tenancy, a correct copy of which is hereto attached and marked ‘Exhibit B’ and by reference incorporated herein and a copy of which is also attached to defendant's answer filed herein and marked ‘Exhibit A,’ and that defendant, by said answer, admitted receipt of said notice on said date. That plaintiff desires possession of these premises for immediate use and occupation as a dwelling for herself. Affiant further states that all of the statements in this affidavit are made of her personal knowledge; that if sworn as a witness in this cause, she can competently and would testify to all of the statements contained in the foregoing affidavit and in the complaint heretofore filed in the above entitled cause.'

Attached to the affidavit was a copy of the lease dated April 7, 1942, between plaintiff as lessor and defendant as lessee, demising the premises at a rental of $45 per month for the period from May 1, 1942 to April 30, 1943, and containing the following typewritten provision: ‘It is agreed that in the event that the premises are sold and that the new owner desires possession that lessor can cancel this lease by giving lessee sixty days previous notice and allowing one month's rent as a consideration therefor.’

The lease contains an endorsement that it was extended to April 30, 1944. Also attached to the affidavit was a copy of the notice by plaintiff to defendant, reading: ‘I hereby give you notice to quit and deliver up possession of the premises at 1542 Forest Avenue in the City of Des Plaines, in the County of Cook and State of Illinois, to me on April 30, 1945. This notice is given for the express purpose of terminating your rights, if any, under a lease of these premises given by me under date of April 7, 1942, for the period from May 1, 1942 to April 30, 1943, which lease was extended by an endorsement to April 30, 1944; to terminate a month to month, or year to year tenancy of said premises, if you are holding under either of such tenancies, and also to terminate any and all other rights which you may have or claim to have entitling you to retain possession of these premises. You are further notified that I desire to recover possession of these lands and premises and the housing accommodations thereon at the termination of your tenancy on April 30, 1945, for immediate use and occupancy as a dwelling for myself; that I owned these lands and premises prior to October 20, 1942, and that this notice is given in order to obtain possession of these premises in accordance with the provisions of and the rights given me by Section 6(a)(6) of The Rent Regulations for Housing, originally issued May 31, 1943, as amended and reissued by Chester Bowles, Administrator, on September 12, 1944.’

Opposing the motion, defendant filed the following affidavit: ‘That he has a good defense on the merits to all of the plaintiff's claim. That the nature of affiant's defense is, as follows: (a) That he rented the premises, as a tenant, located at 1542 Forest Avenue, Des Plaines, Illinois from the plaintiff in accordance with the terms and provisions of a written lease, a copy of which is attached to the plaintiff's affidavit marked Exhibit A, and said lease was for the period from May 1, 1942 and expiring April 30, 1943, and said lease was extended to April 30, 1944 and has resided in said premises continuously from May 1, 1942 to date hereof as a tenant and now resides in said premises lawfully as a tenant, having complied at all times with the terms and covenants of said lease and paid all rent due, with his wife and minor son. (b) That on January 30, 1945 a Notice to Terminate Tenancy and Demand for Possession was served by the plaintiff on the defendant, whereby the plaintiff terminated said tenancy as of April 30, 1945, a copy of which notice is attached to plaintiff's affidavit filed herein, and said notice also states that plaintiff desires to recover possession of the premises for immediate use and occupancy as a dwelling for herself. (c) That the premises involved herein have been designated by the Administrator of the Office of Price Administration pursuant to Section 2(b) of the Emergency Price Control Act of 1942 (Act of Congress) as defense rental area and said Administrator of the Office of Price Administration in accordance with the said Emergency Price Control Act of 1942 has issued a declaration declaring rents frozen as of March 1, 1942 and said maximum rent became effective on and after July 1, 1942 and said premises have continued to be designated as a defense rental area and is now designated as a defense rental area and therefore under the jurisdiction of the Federal Emergency Price Control Act of 1942 and the regulations pertaining thereto. (d) That the pertinent provisions of Regulation 28 of the Emergency Price Control Act of 1942, and its amendments, issued by the Office of Price Administration, are as follows: ‘Sec. 6. Removal of tenant-(a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has...