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Lipschultz v. So-jess Management Corp.

NOVEMBER 27, 1967.

M.A. LIPSCHULTZ, PLAINTIFF-APPELLEE,

v.

SO-JESS MANAGEMENT CORP., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, First Municipal District; the Hon. JOHN J. KELLY, JR., Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiff confessed judgment on a lease for rent which accrued after defendant had vacated the leased premises. The trial court opened the judgment to permit the defendant to assert its defense of constructive eviction and, after a non-jury trial, confirmed the judgment. Defendant appeals. Appeals Nos. 52,061 and 52,062, which involved judgments for subsequent rent accruals, have been consolidated with the instant appeal for disposition.

On appeal, defendant contends (1) the plaintiff was guilty of the first breach of contract of lease, and cannot, therefore, enforce the provisions of the contract which he first breached; (2) the trial court erred in admitting settlement correspondence and in considering the motives of defendant in terminating the tenancy; and (3) there was a complete failure of proof because the lease was not introduced into evidence and the amount due thereon was not proved, and this requires a new trial.

Plaintiff contends (1) the defendant failed to prove acts or circumstances constituting a constructive eviction; (2) the defendant did not vacate the premises with diligence and failed to establish a causal connection between the conditions alleged and the abandonment; and (3) plaintiff was not compelled to prove either the lease or the rent claimed.

The lease, dated December 7, 1962, covered the entire third floor of a building at 178 West Randolph Street, Chicago. It was for a term of two and one-half years, commencing February 1, 1963, and ending July 31, 1965. The use specified in the lease was "offices in connection with the insurance business of the Lessee."

A rider attached to and made a part of the lease included:

"22. Lessor will level and install asphalt tile floors of a color to be selected by Lessee."

and

"26. Lessor will install the necessary duct work and a package heating and air conditioning unit with thermostatic control on the premises of the Lessee. This unit will be connected to the electrical system of the Lessee, and all maintenance and repairs to this system will be borne by the Lessee."

Defendant vacated the premises on November 30, 1964, and the instant judgment by confession was entered on January 6, 1965. The complaint shows that it was for rent for the months of December 1964 and January 1965.

The motion of defendant to open the judgment and defend was supported by an affidavit of Sheldon Strongin, its president. In part, the affidavit stated that notice was given to plaintiff on February 27, 1964, and April 2, 1964, that "the asphalt tile floorings" were in need of repair; that on August 13, 1964, September 24, 1964, and October 12, 1964, letters were written informing plaintiff "of the necessity to vacate the premises because of inadequate heating and air conditioning and continuing unsafe and hazardous condition of the flooring which plaintiff had heretofore assured defendant was repaired"; and that on December 3, 1964, "defendant again wrote to plaintiff's agent and indicated that because of the heretofore named unsafe flooring and heating problems, it had vacated the premises which are the subject matter of this lease on December 1, 1964."

At the trial on the merits, the court properly ruled that the burden of proof was on the defendant. The witnesses for the defendant consisted of its president and a general contractor who visited the premises during the period in question. The witnesses for plaintiff consisted of the building manager and the general contractor who had subcontracted the work for the installation of the tile floor and the ventilating system.

The testimony showed that an asphalt material called "underlayment" was poured over the uneven oak floor to provide a level base, on top of which the tile was laid, and that lessor installed a self-contained ventilating system for circulating warm or cool air.

As to the floor, defendant's president testified that after a few months' occupancy, the tile disintegrated over large areas, and defendant put up obstacles so that people wouldn't trip over broken tile. Defendant's contractor testified that the floor installation was faulty, and the floor was falling apart.

Plaintiff's building manager testified that about a year after defendant moved in, a hole in the floor, one inch deep and three-quarters of an inch around, was repaired. He stated, "The other tiles on the floor were in ...


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