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Perry v. Waddelow

OPINION FILED OCTOBER 26, 1953

THOMAS L. PERRY AND ARELISLE PERRY, PLAINTIFFS-APPELLANTS,

v.

FLOYD WADDELOW, DEFENDANT-APPELLEE.



Appeal by plaintiffs from the Circuit Court of Champaign county; the Hon. GROVER W. WATSON, Judge, presiding. Heard in this court at the October term, 1953. Judgment affirmed. Opinion filed October 26, 1953. Released for publication November 12, 1953.

MR. JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

Plaintiffs, Thomas L. Perry and Arelisle Perry, brought a forcible entry and detainer action against the defendant, Floyd Waddelow, in the circuit court of Champaign county, to recover possession of certain premises situated in the City of Champaign. The complaint filed November 28, 1950, alleges that on November 13, 1945, the plaintiffs and defendant entered into a lease whereby plaintiffs leased to defendant the premises located at 340 N. Hickory Street and extending back to Fremont Street as far as necessary for the construction of an additional room provided that any building so constructed shall not approach closer than thirty feet to Fremont Street or closer than three feet from the existing buildings on the south; that subsequent to the execution of said lease, the defendant constructed a structure on the leased premises closer than thirty feet to Fremont Street; and that subsequent to the execution of said lease, the defendant made entry onto certain vacant or unoccupied lands or tenements belonging to the plaintiffs and located at the rear of the leased premises and wrongfully retains possession thereof. The complaint further alleges the service of a demand for possession upon defendant and the failure and refusal of the defendant to surrender possession of the premises.

The defendant's answer admits construction of a structure on the rear thirty feet of the leased premises, extending approximately to Fremont Street, but denies that said construction was a violation of the terms of the lease. The answer denies the defendant's entry onto vacant or unoccupied lands of the plaintiffs and alleges that in the year 1945, with the consent of the plaintiffs, the defendant constructed a concrete slab twelve feet wide on the rear thirty feet of the leased premises, which said slab has been used by the defendant in the operation of his business, with the knowledge and consent of the plaintiffs.

Three special defenses are set up in the answer, which are in substance: (1) That the conduct of the defendant did not constitute a breach of the lease; (2) That plaintiffs are estopped from maintaining their action by reason of their having consented to the construction of the building on the rear thirty feet of the leased premises; and (3) That plaintiffs knew in December of 1948 that the building had been constructed on the rear thirty feet of the leased premises; that one of the plaintiffs was in said building in December 1948, March 1949, and in December 1949; that on none of said dates did plaintiffs make any objection to the defendant concerning the construction of said building; that plaintiffs have accepted payment from the defendant of the rent provided in the lease on the 1st day of each month since the execution of the lease, and that plaintiffs made no objection to the construction of the said building until January 9th, 1950.

Motion to strike these special defenses was denied and a reply thereto filed.

The issues were tried by the court without a jury, resulting in a finding and judgment thereon in favor of the defendant and in bar of plaintiffs' action. From this judgment, plaintiffs have brought this appeal.

The plaintiffs assign numerous errors as a basis for reversal of the judgment of the trial court. Without reciting the same in full, it may be said that in general they urge: (1) That the findings by the trial court that the defendant and his wife were not co-partners, and that all of the property from Hickory to Fremont Streets was included in the lease, are against the manifest weight of the evidence; (2) That the trial court erred in denying plaintiffs' motion to dismiss the action; (3) That the trial court erred in not holding the construction on the rear thirty feet of the premises to be a continuing breach and in not entering judgment for the plaintiffs for the said rear thirty feet; (4) That the court erred in refusing to enter judgment for the plaintiffs for the entire tract, and further erred in its rulings on the admissibility of certain exhibits.

At the close of the evidence, plaintiffs moved for leave to amend their complaint by adding thereto certain allegations to the effect that the defendant and his wife, Donna Waddelow, subsequent to the execution of the lease, formed a partnership and that the creating of such partnership worked an assignment of the lease in violation of the terms therein. The trial court denied this motion, and made a finding that the defendant and his wife were not co-partners. The correctness of such finding depends upon whether it is supported by the preponderance of the evidence upon the issue involved. An examination of such evidence convinces this court that it was ample to sustain the trial court's finding.

Plaintiffs contend that there was no evidence to support the finding of the trial court that the leased premises included all of the real estate from Hickory Street to Fremont Street. It is argued that the language used in describing the premises in the lease (plaintiffs' Exhibit 1), plainly indicated an intention that the east thirty feet of the tract in question should be excluded. It is defendant's contention that the leased premises included all of the tract extending back to Fremont Street and the provision that any building constructed should not approach closer than thirty feet to Fremont Street related only to the size of any building which might be added, and did not in any way limit the defendant's occupancy of the land back to Fremont Street.

It seems apparent that the lease is ambiguous insofar as the description of the leased premises is concerned. This is particularly true in view of the clause in the lease, reading as follows: "First party hereby consents to second party erecting any building on the rear of said lot, and second party is to pay any property tax assessed on building so erected on said premises by him." If it be contended that in another portion of the lease the parties indicated an intention to exclude the rear thirty feet of the premises in question, the above quoted language must be considered as being repugnant to and in conflict therewith. In such situation, the true intention of the parties must be gained not only from a consideration of the language employed, but a court may also look to the acts of the parties which indicate their interpretation of the meaning of the written contract. Street v. Chicago Wharfing & Storage Co., 157 Ill. 605.

There was evidence before the trial court that in 1946 the defendant constructed a concrete slab on the area in dispute extending to Fremont Street; that in October 1948, defendant began construction of the building which is referred to as the second addition; that plaintiffs had knowledge of this construction but made no objection thereto; and that plaintiffs accepted rent from the defendant each month from January 1949 through October 1950. There was also introduced in evidence a letter dated January 9, 1950 (defendant's Exhibit 2) in which plaintiffs admit knowledge of the construction of the second addition at Christmastime in 1948. It further appears from the evidence that on December 29, 1949 (defendant's Exhibit 1) plaintiffs requested defendant to increase his rent.

Plaintiffs further contend that the construction of the second addition by the defendant constituted a continuing breach of the lease which was not waived, and that therefore the trial court should have entered judgment for the plaintiffs for the entire tract. If such contention were to prevail, it would have necessitated a finding by the trial court that each day the building stood on the rear thirty feet of the lot, a breach of the restrictive covenant occurred. The complaint charged but the one violation of the restrictions imposed by the lease, namely that the defendant constructed a building on the leased premises closer than thirty feet to Fremont Street. No issue as to a continuing or recurring breach was raised by the pleadings. The only issue which the trial court was called upon to decide was whether the plaintiffs, by their conduct, subsequent to the alleged breach, waived their right to declare a forfeiture.

The undisputed evidence is that the plaintiffs accepted rent from the defendant each month from December 1948, at which time the plaintiffs admit knowledge of the completion of the addition, until October 1950.

It is a well known legal principle that the courts do not favor forfeitures, and circumstances indicating an intention to waive the same will be readily adopted by them. Waukegan Times Theatre Corp. v. Conrad, 324 Ill. App. 622. Acceptance of the monthly rent payments from the defendants in the situation presented by the facts in the instant case must be held to have constituted a waiver by plaintiffs of their right to declare a forfeiture of the lease by reason of the ...


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