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Lipschultz v. Robertson

OPINION FILED JUNE 5, 1950

M.A. LIPSCHULTZ ET AL., TRADING AS 745 WEST VAN BUREN STREET BUILDING, APPELLANTS,

v.

R.I. ROBERTSON ET AL., TRADING AS PRECISION ELECTRIC COMPANY, APPELLEES.



Appeal by plaintiffs from the Municipal Court of Chicago; the Hon. WENDELL E. GREEN, Judge, presiding. Heard in the first division of this court for the first district at the February term, 1950. Judgment reversed and judgment here. Opinion filed June 5, 1950. Rehearing denied June 26, 1950. Released for publication June 26, 1950.

MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 26, 1950

Plaintiffs secured a judgment by confession in the sum of $720 against defendants, upon a lease dated October 11, 1946. Upon petition of defendants the judgment was vacated and defendants were allowed to defend. Plaintiffs filed an amended statement of claim, seeking to recover in addition to the amount of the original judgment the sum of $200 for certain electric drop cords, one window of the value of $100, and a necessary expenditure of $50, making a total claim of $1,070. Defendants filed an answer denying the claims made. Upon a trial of the issues by the court without a jury, a judgment in favor of defendants was entered, from which plaintiffs appeal.

The case was tried upon a stipulation of facts, which discloses the following: that the premises in question were in a commercial building, the lease from plaintiffs to defendants covering the second floor, for a term from November 1, 1946, to October 31, 1951; that there was a deposit for two months' rent, provided for in defendants' lease, which was to be applied to the last two months of the term; that the lease contained the following clause: "In the event of sale of the building, new purchaser may cancel this lease by giving sixty (60) days' notice in writing to the lessee"; that the City of Chicago acquired title to the building by warranty deed from plaintiffs. The date of the deed is not stated in the stipulation, but it does appear from the record to be September 30, 1948. On October 27, 1948, the City of Chicago executed a lease to the plaintiffs of the entire building in question, for a term from November 1, 1948, to April 30, 1949, and another lease dated April 1, 1949, for a term commencing May 1, 1949, to October 31, 1949. These leases from the City provided that the lessees would have the privilege of subletting said premises, and that either party could terminate said lease on the last day of any calendar month, during the term thereof, by giving to the other not less than 30 days' prior written notice of intention so to terminate. The rent reserved in each of said leases was $6,000, payable in six equal monthly instalments. On October 25, 1948, a letter from the Commissioner of Subways and Superhighways of the City was sent to the defendants and reads as follows:

"Our program of construction of the Northwest Route in which the property you now occupy at the above address is located, will require the removal of all buildings in this area early in 1949.

"We are advising you of our plans now in order that you will have additional time to relocate before formal demand is made for the building.

"We are rapidly acquiring property in this area and each month shows an increase in the number of firms who are looking for new locations. For this reason, we think it will be to your advantage to relocate as soon as possible."

No action was taken by the defendants upon receipt of this letter until March 31, 1949, when they wrote a letter of that date to the Department of Subways and Superhighways, reading as follows:

"Pursuant to your letter of October 25, 1948, setting forth that the removal of all buildings in this area are to take place early in 1949, we have relocated and hereby notify you that the premises occupied by Precision Electric Company will be vacated on or before May 1, 1949.

"We would appreciate your acknowledging receipt of this notice confirming these understandings."

On April 2, 1949, plaintiffs, through their attorney, sent the following letter to the defendants:

"Your registered special delivery letter dated March 31, 1949, sent to the 745 W. Van Buren Street Building and the Department of Subways and Superhighways has been forwarded to us. Obviously, it is your desire and intention to breach your lease on the pretext that the letter to you from the Department of Subways and Superhighways dated October 25th, 1948, was a notice to move.

"You are hereby notified that such letter was not such a notice; that the Department of Subways and Superhighways have no right, power, or authority to give you any notice to move; that your lease is not with them; that no notice whatever has been given to you by your lessor, and that the letter sent by the Department of Subways and Superhighways was merely a form letter and was not intended by that Department to constitute any notice of cancellation of lease, even if it had authority to do so, which it did not have.

"You are further notified that you will be held to a strict compliance of your lease on the above described premises."

Defendants had not to the date of this letter of April 2nd received any confirmation from the Department of Subways and Superhighways, as requested in their letter of March 31 to the Department. On April 4, 1949, the Commissioner of the City wrote to defendants, as follows:

"This is to acknowledge receipt of your letter of March 31 in which you advise us of your intention to vacate the building at ...


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