Appeal from the Circuit Court of St. Clair County; the Hon.
JAMES W. GRAY, Judge, presiding. Affirmed in part and reversed in
Rehearing denied May 5, 1966.
This is an action brought by a lessor against lessees for violation of a written lease.
Plaintiff and defendants executed a written lease dated January 19, 1960, for certain hardware premises located in the Southview Plaza Shopping Center located at O'Fallon, Illinois. Defendants went into possession and thereafter on December 22, 1960, said parties executed another lease, identical in all respects except that it was for a larger location, and covered the period March 31, 1961, to March 31, 1965. Paragraph 16 of the lease provided for liquidated damages upon default by lessee and lessor taking possession. Paragraph 28 provided for a written notice to the lessee upon violation of any covenants or agreements therein contained and if such default continued for a period of 10 days after written notice had been sent, then the lessor, without further notice may terminate this lease and re-enter upon and take possession of the demised premises. Paragraph 33 of the lease, and it is this paragraph that is the actual subject matter of this appeal, reads as follows:
"The Lessee agrees to operate its aforesaid business upon the demised premises, that no other use will be made of said premises other than the sale of the items mentioned on Page Two (2) hereof and other commodities and services associated with said business. The Lessee further agrees that said business will remain open everyday of the week excluding Sundays and legal holidays, from the hour of 8:00 A.M. to 5:00 P.M., or any additional period desired by Lessee, and further Lessee agrees to abide by the rules to be hereinafter promulgated by the Lessor or an Association of Tenants (which may include Lessor) for the betterment of the Southview Plaza Shopping Center."
The agreed minimum rental was $6,500 per year, payable monthly in advance. An additional percentage rental was also payable in event lessee's gross sales exceeded a certain figure. The lessor declared the lease terminated for alleged violations of the covenants contained therein and took possession of the property. The plaintiff landlord then brought suit to recover liquidated damages. The defendants filed a counterclaim for damages for forcible eviction from the leased premises. The cause was tried before the court without a jury and judgment rendered for plaintiff for $12,746.74, being the actual amount of loss of rent proved, and against defendants on their counterclaim, from which judgment this appeal is taken. Neither party raises any question as to the amount of damages awarded.
The evidence is undisputed that on May 1, 1962, the plaintiff promulgated the following rules:
"(1) All tenants will maintain adequate stock at competitive prices with shopping centers and similar establishments in the Greater Belleville Area.
"(2) All tenants will maintain an adequate staff of sales people to operate and represent the store.
"(3) All tenants will maintain the store hours from 9:00 A.M. to 9:00 P.M., six days a week, as previously agreed upon which has been established by the Merchant's Association and O'Fallon Development Company.
"These articles must be followed diligently by each tenant. The only exception to the above articles are those establishments engaged in the service operations which are governed by union contracts."
On May 7, 1962, plaintiff sent notice to defendants that they were in default of the rules and unless corrected within 10 days the lease would be terminated. On June 1, 1962, without further notice, plaintiff's agents padlocked and chained the entrance to the store. Defendants were requested to vacate and the June rental was returned to them by plaintiff. Defendants vacated the premises and plaintiff filed suit claiming liquidated damages in the amount of $18,145.66, being the amount provided under paragraph 16.
It is defendants' contention that there was no violation of the written lease and that the rules promulgated by plaintiff were not in contemplation of the parties at the execution of said lease; that the promulgation of the rules is an attempt to vary the terms of the written contract, that the rule with respect to the hours is in direct contradiction to the express terms of the contract, and that the court erred in admitting evidence with respect thereto. They further point out that despite the language "hereinafter promulgated" that no such rules were appended to or incorporated in the lease, and urge that the words used in the lease and particularly paragraph 33 have definite and precise meaning, and there is no ambiguity, and therefore plaintiff should not have been allowed to present proof to contradict or vary its meaning. They further urge that if the intention of the parties permitted the promulgation of rules subsequent to the execution of the lease, that such promulgated rules, at variance with the express provisions of the lease, could not have been intended to become covenants and conditions of forfeiture and point out that the language of the lease pertaining to forfeiture is based on "covenants herein contained," the language used in both paragraphs 16 and 28, and that no reference is made to forfeiture for any condition not contained in the lease.
[1-5] If the language in a lease is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning or give it a meaning inconsistent with the language used in the instrument. Gale v. United States Brewing Co. of Chicago, 181 Ill. App. 381. No Association of Tenants was a party to the lease, so it is only reasonable to consider that here was a reference to matters outside the express language of the lease, and we consider that the language used in paragraph 33 "to abide by the rules to be hereinafter promulgated" taken with the fact that no additional rules were later set forth in the contract, created an ambiguity and the court proceeded properly to hear evidence bearing on the intention of the parties. We do not consider the maxim of the law "expressio unius est exclusio alterius" applicable here as to the hours of opening and closing; it is a formula of logic having its most frequent use in the construction of remedial statutes and in a lease where the intention of the parties is obvious that other conditions or provisions are to be made, such maxim is not applicable. In South Parkway Bldg. Corp. v. South Center Dept. Store, 19 Ill. App.2d 14, 153 N.E.2d 291, the court said the cardinal rule in the interpretation of a lease is that the court should ascertain and give effect to the intention of the parties. We likewise agree with the language of Gale v. United States Brewing Co. of Chicago, supra, at page ...