Stobie v. Dills

• Decision Date: 31 January 1872
• Citation: 1872 WL 8065,62 Ill. 432
• Parties: ALEXANDER STOBIE et al.v.HARRISON DILLS.
• Court: Illinois Supreme Court

62 Ill. 432

1872 WL 8065 (Ill.)

ALEXANDER STOBIE et al.

v.HARRISON DILLS.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams County; the Hon. JOSEPH SIBLEY, Judge, presiding.

This was an action of covenant upon the following lease:

“This indenture, made this first day of January, A. D. 1867, between Harrison Dills, of Quincy, Illinois, of the first part, and Alex. Stobie, L. H. Wilcox, and John W. Obert, Trustees of Quincy Lodge No. 139, I. O. of G. Templars, or their successors in office, of Quincy, Illinois, of the second part, witnesseth: that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, their executors, administrators, and assigns, has demised and leased to the said party of the second part all those premises, etc. To have and to hold the above described premises, with the appurtenances, unto the party of the second part, their executors, administrators, and assigns from the first day of January, A. D. 1867, for, and during, and until, the first day of January, 1872. And the said party of the second part, in consideration of the leasing of the premises aforesaid by the party of the first part to the party of the second part, does covenant and agree with the said party of the first part, his heirs, etc., to pay to said party of the first part, as rent for said demised premises, the sum of three hundred dollars per annum, payable at the end of each month, at the rate of twenty-five dollars per month.”

The parties of the second part, in all the covenants following use the words ““they,” and “their heirs.” The lease was signed, H. Dills (L. S.), Alex. Stobie (L. S.), L. H. Wilcox (L. S.), John W. Obert (L. S.).

The breach assigned was the non-payment of twelve hundred dollars rent, up to Dec. 31, 1870.

The defendants pleaded eleven pleas:

1. Non est factum, verified by affidavit.

“2. And for an amended plea by them secondly above pleaded in this behalf, the defendants say, actio non, because they say that no part of the said rent in the said declaration mentioned is in arrear, or unpaid, in the manner and form as the said plaintiff hath above, in his declaration in that behalf, alleged, and of this the said defendants put themselves upon the country,” etc. “3. And for a further amended plea by them thirdly above pleaded in this behalf, the defendants say, actio non, because they say that they executed the indenture as trustees of Quincy Lodge No. 139, Independent Order of Good Templars, a corporation duly incorporated under and by virtue of the statute of this State, for and in behalf of the said corporation, for the sole and only purpose of binding the said corporation, and not otherwise, or in any other capacity whatever, and not for the purpose of binding themselves individually; that the said defendants, at the time of executing the said indenture, had full power and authority to make, execute, and seal the said indenture in behalf of the said corporation, and to bind the same thereby, all of which the said plaintiff then had notice and consented thereto, and this the said defendants are ready to verify, wherefore they pray judgment,” etc.

4. In substance, that at the end of each month the plaintiff has been paid divers sums of money, amounting, to-wit, to all the money in the declaration mentioned, in full satisfaction and discharge of all the causes of action mentioned, and which payments plaintiff accepted in full satisfaction and discharge.

“5. And for a further plea in this behalf, as to so much of the rent as is alleged in said declaration to be due for the use of the premises in said declaration mentioned, since the first day of January, A. D. 1869, the said defendants say, actio non, because they say that after the alleged making of the said indenture in said declaration mentioned, and on or about the first day of January, A. D. 1869, the said plaintiff, with the assent of the defendants, leased the said premises to John K. Van Doorn, for the sum of two hundred dollars per year, or sixteen and two-thirds dollars per month, and accepted the said Van Doorn as his tenant in lieu of and substitution for all previous lessees of said premises; and that the said Van Doorn took possession of the said premises under and by virtue of the said lease, and has since paid to said plaintiff all of the said rent due under and in pursuance of the said lease to him, as aforesaid, and the said plaintiff accepted and received the said rent for the use of the said premises from the first day of January, 1869, until the said premises were surrendered to said plaintiff under and in pursuance of the said lease last above mentioned, from the said Van Doorn in full satisfaction thereof, whereby the said indenture in said declaration mentioned, was annulled, canceled, and set aside, and the said defendants, if ever bound thereby, were released therefrom, and this,” etc.

6, 7. These were the same as the preceding, except as to name of new lessee.

8. In substance, as to rent since January 1,...