White v. Walker

• Decision Date: 30 April 1863
• Citation: 1863 WL 3126,31 Ill. 422
• Parties: ALEXANDER WHITEv.MARTIN O. WALKER.
• Court: Illinois Supreme Court

31 Ill. 422

1863 WL 3126 (Ill.)

ALEXANDER WHITE

v.MARTIN O. WALKER.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

On the 11th of April, 1857, Martin O. Walker, the appellee, executed a lease, under seal, for certain premises in the city of Chicago, for a term of two years, to William J. Napier, at a certain rent stipulated in the lease.

Alexander White indorsed upon the lease his guaranty for the payment of the rent at the time it should become due.

Walker instituted an action of assumpsit in the court below, against White, the guarantor, alleging the non-payment of the rent. The pleadings and proof in the cause, and the various rulings upon the trial below, are sufficiently set forth in the opinion of the court.

Messrs. BARKER & TULEY, for the appellant.

The making of a new lease to the lessee during the term of the former lease, operated as a surrender, and discharged the guarantor. 38 Law & Eq. R. 472; 2 Platt on Leases, 506; Woodfall's Land. and Ten. 253, and cases cited; 1 A. & E. 136, (28 E. C. L. 85); 4 Barn. & Cres. 922, 938; 5 ib. 111; and this independently of the intention of the parties; 13 Mees. & Wels. 285, 302, 306; and though the second lease be by parol; Thomas v. Cook, 2 Starkie, 409; 3 E. Com. Law R. 466. The landlord cannot grant a new lease until the old lease is surrendered. Woodfall's Land. and Ten. 253.

2. The new leasing to the widow of the lessee determined the estate under the former lease. The widow, as such, had no right to retain the possession; the residue of the term, after the death of the lessee, vested in the personal representatives. 2 Platt on Leases, 372.

The leasing to the widow released the personal representatives of the lessee from liability for rent accruing after that time. Thomas v. Cook, 2 B. & Ald. 119, (4 E. C. L. 428).

If the lessor allows another to occupy so that he who has a right, cannot get possession, it is a surrender by operation of law. 2 Car. & P. 268, (12 E. C. L. 565).

3. It was for the jury to determine, from the facts, whether or not Walker accepted a new tenant, and the court erred in excluding testimony to that point from the jury, and in not giving the second instruction asked for by defendant below. Woodcock v. Nutte, 21 E. C. L. 259, (8 Bingham, 170); Jones v. Bird, 7 E. C. L. 280; 5 B. & Ald. 850, (4 E. C. L. 428).

4. That the court erred in the first instruction of plaintiff below; that the jury should disregard all evidence in the cause tending to show a discharge of the covenants; that any proof thereof must be in writing, and under the seal of the party. The lease, though under seal, might be discharged by parol. Parker v. Pratt, 15 Ill. 568; Peel v. Totlock, 1 Bos. & Pull. 419.

Messrs. MCALLISTER, JEWETT & JACKSON, for the appellee.

The court below properly excluded evidence tending to show that the premises had become untenantable by reason of the raising of the street to grade, subsequent to the making of the lease. There being no particular agreement to put or keep the premises in repair, the tenant took them for better or for worse, and the lessor was under no obligation to repair. Cleves v. Willoughby, 7 Hill, 90; Munsford v. Brown, 6 Cowan, 475; Corwyn's Land. and Tenant, 185; Taylor's Land. and Tenant, secs. 327, 328; Westlake v. DeGraw, 25 Wend. 669.

The evidence of the subsequent leasing was properly excluded; the terms of a lease under seal cannot be varied by parol. Chapman v. McGrew, 20 Ill. 100. The second instruction for the plaintiff is sustained by the case of Walker v. Hadduck, 14 Ill. 399.

The acceptance, merely, by the landlord, of a new tenant, does not annul the lease to a former occupant. It may be, however, if it is so agreed by the parties; but no new agreement between a landlord and tenant, for the substitution of another tenant, or any other act of a landlord which can be referred to a different motive, will amount to a surrender. Taylor's Landlord and Tenant, sec. 516.

The agreement to substitute must be mutual, otherwise the tenant will not be discharged from his liability. Ib., sec. 517.

Mr. MELVILLE W. FULLER, for the appellant, in reply.

1. Whether the agreement by Walker with Napier, to take less rent than had been reserved, be considered as operating upon the old lease, or as constituting a new one, the court erred in excluding the evidence thereof, and in giving plaintiff's first and third instructions.

If a new leasing, it was a complete defense. Taylor v. Hilary, 1 C. M. & R. 741; Bethune v. Dozier, 10 Georgia, 235, and cases cited.

If an agreement merely changing the terms of the old lease as to the amount of rent to be paid monthly thereon, proof of it was clearly admissible.

The evidence was excluded on two grounds:

( a) That a parol agreement can never be shown at law in defense to a sealed instrument.

( b) That the alleged new agreement was without consideration.

( a) But the new agreement in this case was fully executed, and an executed parol agreement can always be shown at law to defeat a recovery on an instrument under seal.

This is because it is not the agreement alone, but the thing done under it, that is relied on. Dickinson v. Commissioners, etc., 6 Porter (Ind.) 128. The opinion in this case discusses and distinguishes all the leading authorities. Carpenter v. King, 9 Metcalf, 511. And it has been held in this State, that defenses of similar character may be made at law, as well as equity. Flynn v. Mudd, 27 Ill. 323; Davis v. People, 1 Gilm. 409.

Chapman v. McGrew, 20 Ill. 101, is clearly distinguishable, because there the agreement was executory, which is the precise point on which all the cases turn, and because the security in that case was a co-contractor.

( b) Was there consideration?

Benefit to one party, or detriment to the other; the waiver of any legal or equitable right; the giving up a suit when the result is doubtful; the compromise of a doubtful claim, no matter where the right actually turns out to be; either of these forms sufficient consideration. 1 Parsons' Cont. 357, 364, 369; McKinley v. Watkins, 13 Ill. 140.

In consideration of Walker's agreement, Napier waived certain legal or equitable rights he had in the premises, arising from the breach of the implied covenant for quiet enjoyment, and the destruction of the use of the premises for the purpose for which they were leased.

The covenant for quiet enjoyment is implied under the word “demise.” Woodfall's Land. and Ten., p. 98. Which is broken by any description of annoyance which prevents the enjoyment of the property in so ample a manner as contracted for. Ib. 514.

It would seem that a public invasion of the enjoyment is a breach. GIBSON, C. J., 2 Jones (Pa.) 80; Peters v. Grubb, 9 Harris, 455.

The rent ought to be abated where the beneficial use is destroyed. Brown v. Morris, 2 Bro. Ch. Ca. 311; 8 Bac. Abr., tit. Rent; Gilbert on Rents, 147, 148.

It is an implied condition that house should be fit for habitation, and tenant can quit, without notice, when house is so infested with bugs as to be untenantable, or its walls are so dilapidated as to be dangerous, or the drainage is so insufficient as to fill it with an intolerable stench. Smith v. Marrable, 11 M. & W. 5; Edwards v. Ethrington, Ry. & M. 268; Collins v. Barrow, 1 Mo. & Rob. 112.

And though the rule may be now considered more rigid as against the tenant, yet we contend that such is still the law where the leasing is for a particular purpose, as in this case.

At all events, Napier compromised what was a reasonable claim, and it is immaterial how the right might have been eventually determined. McKinley v. Watkins, 13 Ill. 140, and cases cited.

Mutual promises, however, need no extrinsic consideration. 1 Smith's Leading Cases, 465, and cases cited.

And, upon this ground, if no other, the agreement was binding.

( c) Thus much as between Walker and Napier, for as between White and Walker, the principle of equitable estoppel settles the question. 1 Smith's Leading Cases, 466; 2 Amer. L. C. 175; Carpenter v. King, 9 Met. 511.

White was offered security by the Napiers, which he declined to take, because he relied on Walker's agreement.

2. The parol agreement was a waiver of performance of the covenants of the lease; and a waiver of performance of a contract by one party may always be given in evidence by the other, in answer to an action brought for its non-fulfillment. 1 Smith's Lead. Cas. 463, and cases.

3. The evidence was also admissible to defeat the recovery of interest. See post.

2. The court erred in refusing to allow the defendant to prove the value and condition of, and the facts in reference to, the furniture offered to White as security.

The court, by this ruling, cut the defendant off from proving the estoppel which rendered the agreement in question valid by supplying the want of consideration (if it lacked that element of validity), and then shut the agreement out, on the ground that it was without consideration!

3. The court erred in giving plaintiff's second instruction.

Interest, except when provided for in the instrument, is given as damages for delay in payment.

Consent is incompatible with injury, and no one who causes or sanctions the breach of an agreement can recover damages for its non-fulfillment. 1 Smith's Leading Cases, 463.

The non-payment of the full amount of the installments of rent, as they matured, was by consent. 4. The declaration should have averred, and the proof shown, notice to White, the guarantor, of Napier's default. Cox v. Brown, 6 Jones (Law) N. C. 101, and cases cited; Lewis v. Bradley, 2 Ired. R 303, and cases cited.

5. The agreement with Mrs. Napier, after her husband's death, at $50 per month, was clearly a new leasing and a surrender of the old one. At least this was a question for the jury, and erroneously taken from them by the court, which also erred in refusing to give defendant's second instruction. Doe ex dem. Lord v. Crego, 60 Eng. C. L. R....