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Westerman v. Gilmore

MAY 21, 1958.

WILLIAM S. WESTERMAN AND PHILIP A. WESTERMAN, PLAINTIFFS-APPELLEES,

v.

VIRGIL L. GILMORE AND PAUL E. GILMORE, PARTNERS D/B/A GILMORE FORD SALES, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Greene county; the Hon. CLEM SMITH, Judge, presiding. Reversed and remanded with directions.

PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

Under date of May 11, 1954, plaintiffs leased certain premises to the defendants for a term of five years with an option of an extension for an additional five years at a rent of $225 per month payable in advance.

On September 13, 1956, plaintiffs served a notice upon the defendants. This notice, omitting the description of the premises and the signatures of the lessors, is as follows:

"TO: VIRGIL L. GILMORE, PAUL E. GILMORE, PARTNERS, D/B/A GILMORE FORD SALES, WHITE HALL, ILLINOIS.

The undersigned landlords hereby notify you and each of you as Tenants that they have, because of default in the payment of rent, elected to determine your lease bearing date, to-wit: the 11th day of May, A.D. 1954, and tenancy of the premises occupied by you and each of you and more particularly described as follows, to-wit:

(description omitted) You and each of you above named are hereby notified to vacate the said premises on or prior to November 1, 1956.

Dated this 11th day of September, A.D. 1956."

On October 26, 1956, defendants paid the plaintiffs $950 which was the amount of the rent due under the lease up to November 11, 1956. On November 8, 1956, defendants paid plaintiffs $225 for the rent to December 11, 1956. On December 13, 1956, plaintiffs filed their complaint in forcible entry and detainer praying judgment for possession of the premises described in the lease and damages. Defendants filed a motion to dismiss the complaint which was overruled. Subsequently, motions for summary judgment by both parties were overruled and on April 18, 1957, defendants answered the complaint denying the unlawful withholding of possession of the premises in question and averring that all rent due was paid to and accepted by plaintiffs prior to both the date named in the notice to vacate and the date of the filing of the complaint. On October 4, 1957, plaintiffs with leave of court, filed an amendment to the complaint alleging the defendants to be in default in their tenancy for non-payment of rent during the period from June 11, 1957 to September 11, 1957 and praying that defendants be required to deposit security for all rent due and to become due until final determination of the case. On the same date plaintiffs moved for summary judgment and filed an affidavit in support thereof. Defendants then filed their counter-affidavit setting up payment of all rent due plaintiffs to October 3, 1957. Attached to the counter-affidavit is a copy of plaintiffs' receipt for said rent dated October 3, 1957.

The Circuit Court allowed plaintiffs' motions, entered judgment for possession of the premises in their favor and defendants have appealed.

Defendants urge reversal upon 2 grounds: (1) that the notice upon which plaintiffs' action is predicated does not comply with Sections 8 or 9 of the Landlord and Tenant Act (Chap. 80, Illinois Revised Statutes, 1955); (2) that by accepting rent for a period beyond the date of the attempted termination of the lease, plaintiff waived breach of the covenant to pay rent.

Sec. 8 of the Landlord and Tenant Act provides:

"That a landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated. If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation of (to) forcible entry and detainer."

To comply with this section a notice served thereunder must include a demand for payment of rent within a certain time. If tenant fails to pay the rent within the time specified, the landlord may sue for possession. Since plaintiffs' notice included no demand for rent, it does not meet the requirements of Sec. 8. Section 9 of said Act provides that when default is made in any of the terms of a lease, the same may be terminated by giving the tenant 10 days notice to quit, or of the termination of the lease. A form of the notice which may be used is set out in this section. Since the lease in question provides for payment of rent, failure to pay the same constituted a default in the terms thereof.

The record suggests no doubt but that plaintiffs sought to terminate the lease because of defendants' non-payment of rent. It was so stated in the notice. Plaintiffs appear to have followed the procedure outlined in Sec. 9 of the Landlord and Tenant Act and while the date specified in the notice exceeded 10 days, such factor would appear to have no significance. Either Sec. 8 or 9 may be followed in terminating a tenancy in default of payment of rent. The purpose of and ...


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