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1616 Building Corp. v. Rubinson

SEPTEMBER 24, 1965.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD G. SCHULTZ, Judge, presiding. Affirmed.


Defendant appeals from an order denying his supplemented and amended motion to open up or, in the alternative, to vacate a judgment by confession for rent. Defendant also seeks to appeal from an order denying his motion to transfer and consolidate the instant suit with a complaint in equity filed by him against his landlord (plaintiff here) and others, which complaint seeks injunctive relief against this proceeding, a declaratory judgment under the lease, etc. If such an order had been entered it would not be appealable and an appeal therefrom would have to be dismissed. The record affirmatively discloses, however, that no such order was entered by the trial court. That part of defendant's attempted appeal will be treated as a nullity, and we shall confine ourselves to a review of the order first-described above.

The determinative issue before us is whether the defendant presented to the trial court a meritorious defense which would require the confession judgment to be opened and entitle him to a trial on the merits. The facts which we shall recite are drawn from defendant's amended and supplemented affidavit filed with his motion pursuant to Supreme Court Rule 23. Ill Rev Stats (1963), ch 110, § 101.23. The plaintiff did not file any counteraffidavits.

Defendant signed a lease with plaintiff for a term of three years beginning November 1, 1962 at a rental of $635 per month for apartment ($600) and garage ($35). By the terms of the lease, rent falls due on the first day of each month; if the tenant does not pay the rent within five days after it becomes due, the landlord has the right to confess judgment on the lease for the amount in default.

Upon agreement with his landlord, defendant took possession of the premises two weeks before the term began, or on October 16, 1962. Desiring to avoid the necessity of writing monthly checks, defendant prepaid his rent in the amount of $6,000. (The commuted amount paid was $5,748 because of consideration for the prepayment.) Pursuant to the lease defendant also deposited with the landlord (or Baird & Warner, Inc., who acted as agent for plaintiff) $1,200, half as a security deposit and half as payment of the final month's rent under the lease.

Under an agreement between the parties the entire credit of $7,200 was applied to the first year's rent commencing October 16, 1962. On Baird & Warner's books, defendant's account was credited with twelve monthly payments of $600 covering the period through October 15, 1963, and defendant was so notified. The record is silent as to the garage rental for that period.

Rent for October 16, 1963 through November 15, 1963 in the amount of $635 was paid by check dated October 18, 1963.

In the early part of November, 1963 the plaintiff requested defendant to begin making payments on the first of the month, thus bringing the rental periods in consonance with the written terms of the lease. In response to this request, defendant mailed to plaintiff a check dated November 14 for $317.50 covering rent for the last half of November. The endorsement placed on the back of the check by defendant indicated, in part, that payment was being made in this amount for the purpose of putting rent on a first-of-the-month basis.

Shortly after mailing this check, defendant received from the Public Service Company an electric bill for $57.29 covering the period September 5 through November 5, 1963. Prior to September 5 the parties had agreed to limit defendant's liability for electricity to $9 per month. For purposes of convenience, the electric company was to send the bill directly to plaintiff, who would pay it and in turn charge defendant the appropriate amount. These arrangements had become necessary because the apartment was billed from a single meter which included not only items for which defendant was liable, but also items for which, according to the lease, plaintiff was liable, such as heating and air conditioning.

In order to avoid the possibility of his electricity being shut off, defendant paid the $57.29 electric bill in full. He then stopped payment on his rent check for $317.50 and sent another check to plaintiff for $260.21, representing a half-month's rent less the full amount of the electric bill. This second check also contained a notation about adjusting rent payments to a first-of-the-month basis. Plaintiff refused tender of the check for $260.21 and returned it to defendant on or about November 21, 1963.

On December 6, an attorney for plaintiff telephoned defendant and discussed with him the electric bill and other claims of defendant. It was agreed that defendant should call the attorney on December 9. Having made the call as requested, defendant was informed (as set forth in defendant's affidavit) "that if unstated amounts were not paid by twelve o'clock (which had already passed) some unspecified steps would be taken." Defendant responded on December 11 by writing the attorney a letter disparaging the latter's conduct and informing him that a suit was being prepared for various claims of defendant against the landlord and Baird & Warner (including a claim for punitive damages), and that the complaint would be filed shortly unless matters could be settled to defendant's satisfaction.

Meanwhile, the instant suit seeking confession of judgment for rent covering the last half of November and all of December had been filed by plaintiff on December 10 and judgment was entered on December 11 for $1,052.50, including attorney's fee of $100. On December 21 defendant filed the aforementioned complaint in chancery which prayed for injunctive relief, declaratory judgment on the lease, and damages from the landlord for negligence, fraud, constructive eviction and breach of the covenant of quiet enjoyment. Defendant then presented in that suit a motion for an emergency injunction to stay further proceedings on the judgment in the instant case. A hearing was had on this motion on December 24, at which time the chancellor indicated that the motion would be denied, and an order to that effect was entered on December 26. On December 24, after learning that his motion for an injunction would be denied, defendant filed his motion to open up the confession judgment. The original motion was stricken and thereafter defendant presented a supplemented and amended motion. It is from the denial of this motion that defendant appeals.

Defendant contends that the judgment is void because it exceeds his warrant of attorney which is limited to past due rent only. According to his argument, when the confession complaint was filed on December 10 an uncertainty existed as to whether any rent was owing to the landlord; the amount due was therefore unliquidated, indeterminable and, in any event, less than the amount confessed. Defendant makes this assertion in the face of the fact that as of December 10 no rent had been paid for the last half of November or for any part of December. He relies on two basic points. First, in modification of the lease terms, a prior course of conduct between the parties had established the 16th of the month as the due date for rent; the first of the month had not been re-established because defendant was not given proper notification; consequently, on December 10 rent was not yet due for the last half of December. Secondly, defendant's claims against the landlord ...

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