Stoddard v. Illinois Improvement & Ballast Co.

• Decision Date: 24 October 1916
• Docket Number: No. 10739.,10739.
• Citation: 113 N.E. 913,275 Ill. 199
• Court: Illinois Supreme Court
• Parties: STODDARD v. ILLINOIS IMPROVEMENT & BALLAST CO.

275 Ill. 199

113 N.E. 913

STODDARD

v.ILLINOIS IMPROVEMENT & BALLAST CO.

No. 10739.

Supreme Court of Illinois.

Oct. 24, 1916.

Error to Branch D Appellate Court, First District, on appeal from Municipal Court of Chicago; Henry C. Beitler, Judge.

Action by Horace H. Stoddard against the Illinois Improvement & Ballast Company. Judgment for plaintiff was affirmed by the appellate court (195 Ill. App. 471), and defendant brings error. Affirmed.Knapp & Campbell, of Chicago (John R. Cochran, of Chicago, of counsel), for plaintiff in error.

Earl J. Walker, of Chicago, for defendant in error.

DUNCAN, J.

Defendant in error is the owner of a 480-acre farm near La Grange, Ill. On January 2, 1903, he leased ten acres of said farm to Bales & Son for a term of ten years, ‘or as long thereafter as the property is suitable for quarrying purposes.’ Bales & Son covenanted in said lease that in consideration of the leasing of said premises by defendant in error, they would pay him at La Grange; Ill., the sum of 6 cents per yard of 27 cubic feet, or 2,500 pounds, for stone removed from said leased premises, and further agreed therein, that after the first year, if good rubblestone was found and sold, to pay for same at the rate of 9 cents per cubic yard, or 2,500 pounds, payable quarterly on the 1st days of January, April, July, and October of each year during said term. It was provided in said lease that defendant in error was to have the privilege of examining the books of the lessees whenever desired, after payments were due, to verify the accounts rendered; also it was agreed by the lessees, their heirs, executors, and assigns, that the whole amount of rent reserved therein should be a valid and first lien upon all buildings and improvements that might be erected on said premises by the said lessees, their heirs, assigns, etc. The said lessees, on the 14th of August, 1905, duly assigned and transferred said lease to Myron J. Carpenter, and the said Carpenter, on the 23d day of November, 1910, duly assigned and transferred the lease, by an indorsement on the back thereof, to the plaintiff in error. On September 10, 1913, defendant in error began this suit in the municipal court of Chicago against the plaintiff in error to recover damages for its failure to comply with the terms of said lease. He set forth in his statement of claim, in substance, the provisions of said lease and the assignments thereof, and that his claim was for damages resulting from the failure of plaintiff in error to develop and quarry rock on said premises according to the terms of the lease; averred that Bales & Son entered upon said premises and found thereon stone suitable for quarrying purposes, and did quarry large quantities of said stone thereon, and that said Myron J. Carpenter quarried from said premises large quantities of stone until the month of December, 1910, the said parties paying to defendant in error, as rents, the sum of $12,046.08; that in December, 1910, plaintiff in error took possession of said premises, and all buildings, machinery, tools, and implements used by the former lessees in quarrying stone on said premises; that it was the duty of plaintiff in error to proceed with due diligenceto develop said premises, which contain large quantities of stone for quarrying purposes, and as assignee aforesaid became liable to carry out the obligations of its predecessors, but that it has utterly disregarded its said duty and has failed and refused, and still fails and refuses, to develop said premises for quarrying purposes, contrary to the intent and meaning of the said lease, and that by reason thereof defendant in error has received no rent or royalties since said last date. Plaintiff in error in its affidavit of defense replied that its only obligation to defendant in error arose under said lease and the assignments thereof aforesaid, pursuant to which it went into possession of said premises December 6, 1910; that since that time it has not removed from said premises any stone of any kind, and that under said lease and the assignments thereof it is not required to quarry stones from said premises; that it did not promise or undertake with defendant in error that it would develop said premises and quarry stones therefrom with due diligence or otherwise; that defendant in error has suffered no damages as set forth in his statement of claim; and that plaintiff in error is not indebted to him in any amount as therein set forth. The issues were tried by a jury, which resulted in a verdict and judgment for defendant in error for the sum of $2,500. The Appellate Court for the First District affirmed the judgment, and the cause was brought to this court for review by contiorari.

It very clearly appears from the provisions of said lease that it is one given for the purpose of quarrying stone. The lessees covenanted to pay as rent or royalty only the price of 6 cents per cubic yard for stone removed from the premises and 9 cents per cubic yard for good rubblestone found and sold by them. The lease was to...