Appeal from the Municipal Court of Chicago; the Hon. JOSEPH J.
DRUCKER, Judge, presiding. Judgment reversed and cause remanded
JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order denying a motion to vacate a judgment for rent entered upon a confession of judgment provision in a lease. The matter arises solely on the motion and supporting affidavit. The question presented to us involves the extent of a lessor's obligation to rent premises vacated by a lessee during the term, and thus mitigate his damages.
Defendant leased an apartment from plaintiff in April 1957, running to April 30, 1958. The lease contained a cognovit provision. On January 1, 1958, defendant vacated the premises covered by the lease. Plaintiff then secured a judgment by confession for rent for the leased premises for January 1958, plus costs, in an aggregate amount of $237.50. Within thirty days defendant moved to vacate the judgment and filed an affidavit in support of the motion. The motion was denied.
The affidavit alleged that plaintiff's agent in December 1957 consented to a sublease of the premises if defendant could obtain a tenant at the same rental and that defendant advertised in the neighborhood newspaper and displayed a "For Rent" sign supplied by plaintiff's agent. Upon defendant's presenting a prospective subtenant, plaintiff's agent said he would think it over, and later refused permission to sublet. Plaintiff's agent said that plaintiff was no longer interested in subleasing, but desired to sell the building and felt that a vacant apartment would promote a sale. Defendant then vacated the premises.
Plaintiff argues that a motion to vacate a judgment by confession is to be construed strictly against the party presenting the motion, and that an affidavit supporting such a motion is closely scrutinized and its intendments taken most strongly against the movant. Plaintiff has some authority to this effect. However, those cases all antedate the Practice Act now in effect. Under that Act, pleadings are to be construed liberally, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. Sec. 33 Civil Practice Act [Ill. Rev. Stats. 1957, ch. 110, § 33], effective January 1, 1956. It is in this light that defendant's affidavit should be examined.
The first issue presented by this appeal is whether one Gumbiner, with whom defendant dealt, was the agent of plaintiff. Plaintiff has rightly suggested that agency cannot be shown by the declarations of the alleged agent alone. This has been a much misunderstood doctrine. An agency cannot be proved by the statement of the purported agent that he was the agent; but the conduct of the purported agent, what he did with respect to the subject matter of the transaction, his assumption of authority, and his actions in relation to his supposed principal, are all circumstances which may be put in evidence.
The instant case is a good example. Defendant, as the tenant, dealt exclusively with Gumbiner, as the agent of the building, and signed the lease at the direction of Gumbiner. He made Gumbiner an offer to cancel the lease and give plaintiff $400 and carpeting and draperies in the apartment. Gumbiner refused the offer, but made the counteroffer that if defendant could obtain a tenant at the same rental defendant was paying, plaintiff would consent to a sublease, and it was Gumbiner who gave defendant a "For Rent" sign to place on the premises. These are circumstances which tend to prove the agency. Faber-Musser Co. v. William E. Dee Clay Mfg. Co., 291 Ill. 240, 246. They are by no means conclusive, but taken together with that time-honored but insufficiently used rule that if the evidence with respect to an issue is within the control of an adverse party, it is he who has the burden of proof they are sufficient. That is peculiarly true in a situation such as the one before us.
The realities of leasing within a great metropolitan center such as Chicago are known to every one, and the court takes cognizance of them. Lessors rarely manage buildings of any substantial size by themselves. Such buildings are managed in the main by real estate agencies which employ subagents. Lessors frequently avoid direct contact with tenants, and it is usually left to an employee in a real estate firm to deal with them. In such circumstances, the best proof of agency is that of which the case in its nature is susceptible, and that is all that is required. Defendant has offered such proof in the instant case.
[6-8] It is contended by defendant that plaintiff accepted a surrender of the lease. A yielding up of a lease is sufficient consideration for the release of the covenant to pay rent. This surrender may be accomplished by a parol agreement. Alschuler v. Schiff, 164 Ill. 298; McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120. The facts alleged here are not adequate to prove such a surrender. All that the allegations show is a refusal to consent to the sublease and a statement that lessor "was no longer interested in subleasing the apartment but was now interested in selling the building, and it would be easier to do so if there was a vacancy in the apartment occupied by Petitioner, rather than to enter into a sublease agreement with a new tenant." That does not show a mutual surrender of the leasehold interest. In Alschuler v. Schiff, supra, the lessor said: "If you don't want to stay here you can move out." In McNeill v. Harrison & Sons, supra, the landlord signified his acceptance of the substitute tenant, and a release of a former tenant. There is no such release or choice here.
It is next contended that plaintiff was obligated to accept the subtenant tendered to him by defendant. This argument is made on two bases: First, that the prohibition against subleasing contained in the lease was waived by plaintiff and it was agreed between plaintiff and defendant that if defendant could obtain a sublessee at the same rental provided for in the lease, plaintiff would consent to a sublease of the apartment to such tenant; and, second, that there is a general duty to mitigate damages.
As to the first proposition, a covenant against assignment without the lessor's consent is for the benefit of the lessor alone and may be waived by his subsequent inconsistent conduct amounting to an estoppel. Webster v. Nichols, 104 Ill. 160, 171; Waukegan Times Theatre Corp. v. Conrad, 324 Ill. App. 622. The restriction once waived ceased to exist as one of the terms of the lease in reference to the particular assignment. McConnell v. General Roofing Mfg. Co., 187 Ill. App. 99, 107. The complaint shows that pursuant to their oral agreement with respect to subleasing (obviously contrary to lessor's consent restriction in the lease), plaintiff furnished defendant with a "For Rent" sign which defendant posted on the leased premises, and defendant also placed a want-ad in a newspaper, thus obtaining a prospect whom he presented to plaintiff. Thereby plaintiff was estopped to deny the validity of the oral agreement and is bound to his waiver of the covenant against assignment. Moses v. Loomis, 156 Ill. 392. See Tiffany, Landlord & Tenant, Sec. 152(h). He was bound to accept the sublessee tendered, unless he had some valid objection to the new tenant. The only objection offered by plaintiff was that the building would be easier to sell with the apartment vacant. There is no claim that the tenant was irresponsible financially or that he was not a suitable tenant. Gelino v. Swannell, 263 Ill. App. 235; Edelman v. F.W. Woolworth Co., 252 Ill. App. 142.
As for the general duty to mitigate damages on abandonment, the law in Illinois is as yet unsettled. The earliest case was Resser v. Corwin, 72 Ill. App. 625, 628-9, where, after the abandonment of the premises by the lessee, the lessor regained possession and later sued to recover rental and for other damages. There was a judgment in favor of the lessee. On appeal, the Appellate court for the 2nd district reversed the cause and remanded it for new trial, stating the proper measure of damages as follows:
"If appellant was entitled to recover, his measure of damages would be, the rent agreed to be paid, less whatever he could have made out of the land by the use of due diligence after it came into his possession. In other ...