Page images
PDF
EPUB

between appellants and appellees during the summer of 1900 with reference to leasing the premises in question, along with adjoining premises, but before any bargain of this kind was consummated the appellees leased the entire building, which included the two numbers already mentioned and also No. 559 Blue Island avenue, to one William Kolacek. Along with the lease a contemporaneous agreement was executed, which referred, in terms, to the lease, providing, among other things: "The said first party agrees to deliver possession of said premises, with the herein above and before described repairs and alterations done, unless said party is prevented from so doing by riot, strikes, inevitable accident, act of God, rebellion, injunction proceedings, or other act or acts of third parties, or of the second party himself, that said first party has no control over, on the first day of April, A. D. 1901. If said first party is prevented from so delivering possession on said first of April, 1901, by any of the aforesaid causes except the act of said second party, then the rent to be paid by said second party shall abate in proportion to delay and to that part of the premises of which possession is not delivered."

January 24, 1901, the appellees commenced an action of forcible entry and detainer against appellants and recovered judgment thereon before a justice, from which judgment Albert Lurie appealed to the circuit court, filing a bond of $2500, with William Loeffler as surety, January 28, 1901. The condition of the bond was as follows: That he "shall prosecute his appeal with effect and pay all rent now due and that may become due before the final determination of the suit, and all damages and loss which the said plaintiffs may sustain by reason of the withholding of the premises in controversy and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is taken is affirmed or appeal dismissed.” Two jury trials were had in the circuit court of Cook county on this appeal, the first resulting in favor of appellants, and on this being set aside the second resulted in favor of appellees, and a judgment was entered against appellants for possession on April 2, 1902, possession being yielded up April 8 or 9 of that year.

May 24, 1902, appellees began an action of debt in the circuit court against William Loeffler and Albert Lurie, respectively, on the appeal bond in said forcible entry and detainer suit, and after a trial by jury, and verdict, judgment was entered February 11, 1905, in the appellees' favor for $2500, damages, interest and costs. This judgment was paid and fully satisfied February 23, 1905. Appellants paid no rent for the premises after December 31, 1900, except that which was recovered by the suit on the appeal bond. May 28, 1902, appellees began this proceeding in the circuit court, jury being waived and trial had before the judge, who entered the judgment now in question of $3380 in favor of appellees, October 10, 1905.

JAMES E. Cross, (I. T. GREENACRE, of counsel,) for appellants.

EDWARD H. MORRIS, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court:

From the propositions of law held by the trial judge it is apparent that he made the finding under the count of the declaration claiming double the rental value for willfully holding over, and not under those counts based on the covenants of the lease for the payment of $20 per day for holding over. Appellants contend that a recovery on any of the grounds charged in the declaration is barred and waived by the election to sue on the appeal bond given in the forcible entry and detainer suit and the recovery and satisfaction of the judgment therein. This precise question has never been decided by this court, and while many authorities from other jurisdictions have been cited, none of them are on "all fours" with the question here involved. In Doe ex dem. Cheny v. Batten, 1 Cowper, 243, it was held that the acceptance of rent after notice to quit did not imply a consent that the tenancy should continue, but the court stated incidentally that such acceptance was a waiver of the landlord's right to double rent under the statute. The point covered by this last statement was not in the case. In Wright v. Smith, 5 Esp. 203, it was held that when a tenant held over after the expiration of his term and the landlord recovered possession by ejectment, he could not thereafter maintain an action of debt under the statute. Some three years thereafter, in reviewing this last case, the court, in Soulsby v. Neving, 9 East, 310, practically overruled the former decision, and held that after the landlord had recovered in an action of ejectment he could still maintain an action of debt under the statute and recover for double the yearly value of the premises during the time the tenant held over after notice to quit. In Ryal v. Rich, 10 East, 7, the landlord had declared in debt, first, for the double value of the rent, and second for the use and occupation. The tenant tendered single rent before the action was brought and paid into court the money, which plaintiff took out before the trial and still proceeded. It was held that this was no cause of non-suit as being a waiver of plaintiff's right to proceed for the double value; that the cause should have gone to the jury, and the plaintiff's going on with the action after taking the single rent was not evidence to show that he meant to waive his claim for double value, but that he merely accepted it pro tanto. This decision was quoted with approval in Higgins v. Halligan, 46 Ill. 173, where this court stated that "the doctrine is well established that accepting a sum tendered, if not accepted in full of all demands, does not preclude the party from proceeding for more."

Freeman on Judgments (4th ed. sec. 259,) says that the best and most invariable test as to whether a former judgment is a bar is

to inquire whether the same evidence would sustain both the

present and the former action.

The parties to this suit are not the same as to the suit on the appeal bond. There, only one of the appellants, and his bondsman, Loeffler, were parties defendant. Under the conditions of the appeal bond appellees could not have recovered in that case for double rent or for $20 per day liquidated damages. In Wilson v. Hoffman, 52 N. W. Rep. (Mich.) 1037, it was held that the judgment for rents and profits in ejectment was not a bar to an action in trover for the cutting and removing of standing timber from the premises by the defendant while in possession. In Lehan v. Goode, 62 Mass. (8 Cush.) 303, the court held that a judgment and satisfaction in an action on a bond given to dissolve an attachment constituted no defense to an action on a bond given, on appeal, to obtain a review of the action on which the attachment was made. In Ackley v. Westervelt, 86 N. Y. 448, it was argued that because the plaintiff sued on an appeal bond given in a forcible entry and detainer suit and recovered a judgment which had been paid, no further suit could be brought for rent not covered by the appeal bond but which had accrued during the withholding. The court held to the contrary, stating that the bond did not supersede the original lease between the parties or alter the terms upon which the defendants were holding the premises; that it operated as collateral security as far as it went; that the amount recovered on the suit on the appeal bond would go in diminution of what would otherwise be recovered in an action for rent, and to that extent should be applied pro tanto.

The action on the appeal bond in the forcible entry and detainer suit herein was commenced May 24, 1902, and this action was commenced four days later. It is manifest that in accepting the payment of damages in the suit on the appeal bond appellees did not intend to waive their claim for the double value of the rent or the $20 per day damages declared for in this proceeding. Under the authorities cited, and upon principle, the suit on the appeal bond, and the payment of the judgment therein, cannot be held to have merged this suit in that judgment or to act as a bar to recovery herein. The following additional authorities tend to support these conclusions: People v. Allen, 86 Ill. 166; Chicago Opera House Co. v. Paquin, 70 Ill. App. 596; Reilly v. Sicilian Asphalt Co. 170 N. Y. 40; Ex parte Bate, 3 Deacon, 358; Holmes v. Bell, 3 M. & G. 118; People v. Sylvester, 22 Ch. Div. 98; Gillespie v. Keator, 56 Fed. Rep. 203.

Appellants also contend that they are not liable for the penalty of double rent, as they held over under a claim of right, and therefore not willfully. The plain meaning of the statute seems to require that the holding over must be willful, and the trial court so held. The authorities sustain this finding. (Stuart v. Hamilton, 66 Ill. 253; Prickett v. Ritter, 16 id. 96; Chapman v. Wright, 20 id. 120; 2 Taylor on Landlord and Tenant,—9th ed.-sec. 622.) The trial court, however, found that the holding over was willful. Appellants contend that the evidence does not support this finding. This was a controverted question of fact, and on such questions the judgment of the Appellate Court, when it approves the judgment of the trial court, is conclusive on this court. The only question that can be reviewed here is whether there is any evidence in the record fairly tending to support plaintiffs' cause of action. The weight of the testimony is not involved. Chicago and Eastern Illinois Railroad Co. v. Snedaker, 223 Ill. 395; Chicago City Railway Co. v. Martensen, 198 id. 511; Blakeslee's Express Co. v. Ford, 215 id. 230; Poppers v. Meagher, 148 id. 192.

It is also contended that the tenants are not liable for the double rental unless there was a written demand for possession by the landlord, and that the manifest weight of the evidence is that there was no service of such written demand. Here, again, the finding of the Appellate Court af

« PreviousContinue »