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Warshawsky v. American Automotive Prod. Co.

NOVEMBER 27, 1956.

WARSHAWSKY

v.

AMERICAN AUTOMOTIVE PRODUCTS CO.



Appeal from the Municipal Court of Chicago; the Hon. JOSEPH J. DRUCKER, Judge, presiding. Judgment affirmed.

JUDGE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Plaintiff obtained judgment by confession for rent due for the month of May 1955 pursuant to a lease executed February 23, 1954 for a term expiring April 30, 1957. Defendant moved to vacate the judgment and in support thereof filed its verified petition. The court sustained plaintiff's contention that the petition did not set up a meritorious defense to the judgment and denied the motion. From this order defendant appeals. The premises and the use thereof are described and stated in the lease as:

"The one story brick garage building known as numbers 11-15 West Cullerton Street, to be occupied for manufacturing, assembling and shipping of automotive parts, and for no other purpose whatsoever."

The question involved is whether the use of the premises as set forth in the lease is contrary to the zoning ordinance and if so whether this is a defense to an action for rent. In this latter respect it is a matter of first impression in Illinois.

In its petition defendant alleges that it was contemplated by the parties that the lessee, being engaged in the business of manufacturing automotive parts, including bearings and housings, and using heavy machinery therefor, would use the premises for that purpose. The district was zoned for commercial use which, it is alleged, does not permit the operations engaged in by defendant (Chicago Mun. Code, Ch. 194A-11). Defendant alleges it did not know this until March 4, 1955, when a city building inspector or attorney notified defendant that the use being made of the premises violated the zoning ordinance. Defendant, without waiting for any formal notice or other action by the city, vacated the premises April 30, 1955 and tendered possession to plaintiff. On June 6, 1955, more than a month after defendant had vacated the premises, it received a written notice of violation from the city. The petition alleges that plaintiff "knew or should have known" that the use to be made of the premises would violate the zoning ordinance.

Plaintiff's answer is that under the zoning ordinances uses could be made of the premises which would constitute permissible uses under the terms of the lease, that there has been no judicial determination that the uses which were made by defendant of the property were in violation of the zoning ordinance and that a lease is not invalidated because one of the uses defined is prohibited by statute or ordinance.

The lease restricts the use of the premises to "the manufacturing, assembling and shipping of automotive parts, and for no other purpose whatsoever." The zoning ordinance permits limited manufacturing in a commercial district where the operations are carried on within a building and in a manner not injurious to adjacent premises. (Chicago Mun. Code, Ch. 194A-11.) So far as it appears relevant to the present case uses are permitted in a commercial district as follows:

(a) Assembling or storage of electrical appliances, radios and phonographs;

(d) Manufacturing, processing, assembling or storing of clay or glass products, provided that kiln capacity does not exceed 200 cubic feet and the kiln is fired only by oil, gas or electricity;

(e) Manufacturing, processing or storing of merchandise from the following finished products: bone, celluloid, cloth, cork, feathers, felt, fibre or paper, fur, hair, horn, leather, precious or semi-precious metals, precious or semi-precious stones, rubber, shell, yarns.

Defendant avers that "automotive parts" is a technological term which is to be distinguished from automotive accessories and that automotive parts are those parts which are an integral or component part of an automobile. It cites a case construing the federal excise tax — Universal Battery Co. v. United States, 281 U.S. 580, 50 S.Ct. 442, 74 L.Ed. 1051. There the word "part" was construed as meaning an article designed or manufactured for the special purpose of being used as a component part of an automobile and "is not such a commercial article as ordinarily would be sold for general use, but is primarily adapted for use as a component part of such vehicle." An accessory "is designed to be used in connection with such vehicle to add to its utility or ornamentation." Other definitions are given which for our purpose are not relevant. Even if we adopt this distinction, it is obvious that many automotive parts such as glass products, cloth and fibre may be made in a district zoned for commercial usage.

The petition avers that it was contemplated by the parties that the lessee "being engaged in business as a manufacturer of automotive parts, including bearings and housings among other things, and using heavy production machinery in the manufacturing processes, would use the demised premises for said purposes . . ." and that the defendant entered into possession of the premises and continued to manufacture the articles in question until advised by the building inspector on March 4, 1955, that this was illegal. It is averred that the lessor "knew or should have known" that the premises were zoned as hereinbefore described and that such zoning prohibited the manufacture of automotive parts and that defendant had no knowledge that this would be in violation of the zoning ordinance. In an amendment to the petition it is also averred that the proposed use was known to lessor at the time of entering into the lease. The lease purports to be and is a definitive contract setting forth all the covenants and agreements of the parties. The averments of the petition do not state facts or circumstances which would warrant the court's restricting the term "automotive parts" to a meaning narrower than that set forth in the lease. Taking the words as used in the lease and accepting the distinction between automotive accessories and automotive parts, uses could still be made of the premises within the zoning ordinance. Even if we were to hold otherwise, we are of the opinion that the allegation in the petition that plaintiff knew that the proposed usage was in violation of the zoning law is not sufficient to bar recovery of rent, and this we will now consider.

The charge in the petition is that plaintiff knew that the use contemplated was in violation of the zoning law and that defendant did not know this. We must assume that defendant knew the law. Kazwell v. Reynolds, 250 Ill. App. 174. In that case the plaintiff sought to have a contract for the purchase of land declared void on the ground that the defendant knew that the plaintiff intended to use the real estate as a sandwich shop or restaurant and that it was represented to him that there were no restrictions on the premises except those appearing of record. After making the contract the plaintiff discovered that a zoning ordinance prohibited the use of the property for the purpose intended. The court held that it would presume that both parties knew the law and if the lessee did not, then the execution of the contract was a mistake of law and no relief could be given him. If in the instant case both parties are presumed to have known that the proposed usage was contrary to the zoning ordinance, then the only conceivable legitimate reason for execution of the lease by defendant was the belief on its part that operation of the premises could be brought within the law or a variation obtained or a proper showing made that as to this property such usage should be permitted. This could well be the case where zoning is involved because variations frequently are obtained either by amendment, by proceedings before the proper board, or by a judicial proceeding to determine the validity of the ordinance as to the particular property involved.

[3-6] In respect to the allowance of variations from their prescribed terms zoning laws are unique. Gorieb v. Fox, 274 U.S. 603; Robinson v. Town Council of Narragansett, 60 R.I. 422, 199 A. 308 (1938); Brandon v. Board of Comm'rs, 124 N.J. 135, 11 A.2d 304; American Smelting & Refining Co. v. City of Chicago, 347 Ill. App. 32. In Gorieb v. Fox, supra, the Supreme Court of the United States rejected the argument that the power to grant exceptions violated the 14th amendment and held that an inflexible application of the zoning ordinance could result in ...


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