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Leavitt v. Kostel

OCTOBER 16, 1961.

HELEN J. LEAVITT, PLAINTIFF-APPELLANT,

v.

BEN KOSTEL AND BESSIE KOSTEL, DOING BUSINESS AS KOSTEL SHOE CO., DEFENDANTS-APPELLEES.



Appeal from the Municipal Court of Chicago; the Hon. KATHERINE NOHELTY, Judge, presiding. Affirmed.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from an order striking her second Amended Statement of Claim and dismissing her suit.

In her original Statement of Claim plaintiff (landlord) alleged that defendants (tenants) had breached their contractual obligation to maintain the premises in good repair and had negligently permitted the destruction of the building's heating plant.

A Motion to Strike was allowed and the Statement of Claim was amended by deleting the charge of negligence and specifying that the cause of the heating plant's destruction had been a fire on March 29, 1958.

Confronted with a Motion attacking this pleading also, plaintiff obtained leave to file a second Amended Statement of Claim. *fn1 This claim sounds in contract, alleging that the lease obligated defendants to maintain the premises in good repair; that the heating plant was destroyed by an explosion on February 2, 1958 (rather than by the fire of March 29, 1958); that plaintiff repaired the heating plant on February 5, 1958 at a cost of $2,296.74 and suffered damages in that amount when defendants refused to reimburse her.

Another Motion to Strike was filed and, after full hearing, was allowed. In its order the trial court also denied leave to file a further Amended Statement of Claim and dismissed plaintiff's suit. Appeal is taken from that order.

The lease contains the following provision:

Fifth. Lessee shall keep the said premises and appurtenances thereto in said demised premises in a clean, sightly and healthy condition, and in good repair, all according to the statutes and ordinances in such cases made and provided, and the directions of public officers thereunto duly authorized, all at his own expense, and shall yield the same back to Lessor upon the termination of the said lease whether such termination shall occur by expiration of the term, or in any other manner whatsoever in the same condition of cleanliness, repair and sightliness as at the date of the execution hereof, loss by fire and reasonable wear and tear excepted.

It is this sentence which plaintiff relies upon as furnishing the basis for defendants' liability. She also contends that the exculpatory clause contained therein applies only to a fire and avails defendants nothing in the case of an explosion as alleged in the second Amended Statement of Claim.

The undertaking of the tenants to yield back the premises at the termination of the lease is a customary clause which, insofar as it excepts reasonable wear and tear, is expressive of the common law. We accept plaintiff's position that the additional exception as to fire does not include explosion, but question whether or not that makes it determinative of the parties' rights in this case. We think not.

In the absence of an express covenant, a tenant has no obligation to repair. (Junction Min. Co. v. Springfield Junction Coal Co., 222 Ill. 600, 78 N.E. 902; 24 ILP 480.) Defendants' agreement to keep the premises "in a clean, sightly and healthy condition, and in good repair" covers only ordinary repairs or those which may be required by statute or ordinance, and does not extend to the replacement or rebuilding of a major facility such as a heating plant. (John Morris Co. v. Southworth, 154 Ill. 118, 39 N.E. 1099.)

Plaintiff states in her brief that in reliance upon the terms of paragraph Fifth she had insured the premises only against fire, and not against explosion. We can sympathize with plaintiff's position in this regard, but find in it no legal basis for imposing liability on the tenants. Being uninsured against explosion, it is probable that plaintiff was also uninsured against windstorm, hail, riot, vehicles, and other risks usually included in "extended coverage" insurance. The tenants would certainly not be required to rebuild the premises if they were destroyed by falling jet aircraft, for example, yet such would have to be the result if, as plaintiff urges, we were to consider the exculpatory provision of paragraph Fifth as an all-inclusive declaration of the tenants' rights in this regard.

Furthermore, the "yield back" provision relied upon by plaintiff is conditioned upon the termination of the lease, an event which is not alleged to have taken place in any reasonable reference to the explosion of February 2, 1958 or the replacement of the heating plant by plaintiff three days later.

It is alleged that on March 29, 1958 the premises were destroyed by fire and that, under paragraph Tenth of the lease, plaintiff exercised her option to terminate the lease on May 1, 1958. As of that date, however, the premises, including the new heating plant, had been destroyed by a fire (not alleged to have had any connection with the earlier explosion) and ...


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