West Side Auction House Co. v. Connecticut Mut. Life Ins. Co.

• Decision Date: 21 June 1900
• Citation: 57 N.E. 839,186 Ill. 156
• Parties: WEST SIDE AUCTION HOUSE CO. v. CONNECTICUT MUT. LIFE INS. CO.
• Court: Illinois Supreme Court

186 Ill. 156

57 N.E. 839

WEST SIDE AUCTION HOUSE CO.

v.CONNECTICUT MUT. LIFE INS. CO.

Supreme Court of Illinois.

June 21, 1900.

Appeal from appellate court, First district.

Action by the Connecticut Mutual Life Insurance Company against the West Side Auction House Company. From a judgment for plaintiff, defendant appeals to the appellate court, and from a judgment of affirmance (85 Ill. App. 497), defendant appeals. Affirmed.

W. A. Phelps and J. B. Muir, for appellant.

E. Parmalee Prentice, for appellee.

WILKIN, J.

This is an action in assumpsit by appellee against appellant, begun in the superior court of Cook county, to recover rent, at $200 per month, under a lease held by appellant, as tenant of appellee, for certain premises in Chicago. Appellant, on the last of October, 1895,-seven months before the expiration of the term,-sent to appellee the keys of the building, accompanied by the following letter: ‘Chicago, October 30, 1895. Isham & Prentice, City-Gentlemen: I return you herewith by bearer the keys (seven) of No. 209 and 211 West Madison street, Chicago, city. The premises are in such bad condition, and as you refuse to make them tenable, i cannot make any use of them. I might add, when you rent the building I shall look for a reasonable compensation for the fixtures, etc., which are mine. Yours, truly, John J. Walls.’ To this letter the appellee, by its attorney, on the same day replied, as follows: ‘Chicago, October 30, 1895. The West Side Auction House Co., 209 West Madison St., Chicago-Gentlemen: Messrs, Isham & Prentice have referred to me the letter addressed by Mr. Walls to them, inclosing keys t property rented to your company by the Connecticut Mutual Life Insurance Company. We can, if you desire, hold the keys for you, but they are at your service, and we cannot consent to any cancellation of the lease, if that is intended by your note. Among other reasons, we have no authority to consent to such cancellation. I note from Mr. Walls' statement that you have left certain fixtures on the leased property. By this I judge that you are still in possession, although you have given the keys to us. We shall assume no responsibility for your property at all. E. Parmalee Prentice.’ Upon appellant failing to pay the rent for the months of October and November, 1895, appellee brought a suit therefor, and recovered a judgment for $400. On April 21, 1897, appellee begun this suit to recover the rent, with interest, for the remaining five months of the term. The declaration consists of two special counts (the first upon the lease, the second for use and occupation) and the common counts. To these counts the defendant pleaded the general issue; non est factum verified; surrender of the premises, and acceptance by the defendant; that defendant did not use and occupy the premises described in the second count; and, lastly, nul tiel corporation. Issues were formed on these pleas, and a trial was had before the court and jury, resulting in a verdict, under the direction of the court, for the plaintiff for $1,127.90. Judgment was rendered for that amount, and an appeal was taken to the appellate court for the First district. Judgment was there affirmed, and the cause is brought here upon further appeal.

Three grounds of reversal are named by counsel for appellant: First, that the trial court erred in instructing the jury to find for the plaintiff; second, that it improperly admitted the lease sued on in evidence; and, third, that it erred in holding that the former suit upon the lease was res judicata in this case. The last question, as shown by the abstract, is not an issue in the case. The first ground of reversal in fact includes the second, because, if the lease was improperly admitted, plaintiff failed to make out its case, without any reference to the defenses. Upon the offer of the lease, defendant objected to its introduction in evidence-‘First. Because it does not purport to be executed by the West Side Auction House Company, the defendant. It is void, signed only by John J. Walls. Second. It is variant from the instrument declared on, as described in the declaration. It is not the instrument described in the declaration.’ These objections were each overruled, and exceptions taken. The lease is signed ‘The Connecticut Mutual Life Insurance Company, by John D. Parker, Assistant Secretary,’ with seal; and the signature of the second party is, ‘Jno, J. Walls, Sec'y,’ and on the margin, ‘W. S. A. H. Co. [Seal.]’ It was not denied-in fact, it is stated in the abstract-that this was the corporate seal of the second party to the contract. What is termed the ‘party clause’ in the lease describes the first party as ‘The Connecticut Mutual Life Insurance Company of Hartford,’ and the second party as ‘The West Side Auction House Company of the city of Chicago, county of Cook, and state of Illinois.’ The declaration describes the insurance company by the name signed to the lease, and the defendant as the West Side Auction House Company. We said in Wood v. Whelen, 93 Ill. 153, the question being whether a mortgage had been executed by a corporation (page...