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Longenecker v. Hardin

OCTOBER 30, 1970.

A. WILLARD LONGENECKER, D/B/A CHICAGO MANAGEMENT COMPANY, PLAINTIFF-APPELLEE,

v.

HERBERT H. HARDIN AND ETHER L. HARDIN, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. VINCENT W. TONDRYK, JR., Judge, presiding. Reversed and remanded. MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Plaintiff recovered a judgment in the amount of $355 and costs against defendants for past due rent. Defendants appeal, and contend that the court erred in striking their two affirmative defenses.

On October 26, 1967, the parties executed a lease for the rental of an apartment from November 1, 1967, through October 31, 1968, for $115 a month.

In the latter part of April, 1968, plaintiff initiated a forcible entry and detainer action against defendants for possession of the apartment and on May 10, 1968, the court entered judgment for possession but stayed the issuance of the writ of execution until May 25, 1968, on which day defendants vacated the premises.

Later in the year, plaintiff initiated another action, judgment by confession, as provided for in the lease and alleged that the sum of $470 was due and unpaid for rents, and that plaintiff was also entitled to $14.10 interest and $80.12 in attorneys fees for a total of $564.22. Defendants upon being served with summons to confirm the judgment responded and interposed two affirmative defenses.

Defendants' first affirmative defense was that the parties agreed to cancel the lease as evidenced by the written expression on the face of the lease which provided, "May 10, 1968, lease cancelled by agreement, Chgo. Mgmt. Co., by Moe M. Forman, its atty." Defendants alleged that plaintiff by his attorney promised to relinquish, waive, surrender and release all rights accruing to him under the lease, in return for defendants' promise to vacate the premises within 15 days and to forbear any contest of plaintiffs' action for possession. Defendants further allege that they performed in conformance with their part of the bargain.

Defendats' second affirmative defense was that the lease was invalid and unenforceable in light of sections 78-13 and 78-17 of the Municipal Code of the City of

Chicago. Section 78-13 provides:

"No person shall occupy as owner-occupant, nor shall any person let or hold out to another for occupancy, any dwelling or family unit which does not comply with the requirements of section 78-13.1 through 78-13.12 of this chapter."

Section 78-17 provides:

"No person shall occupy as owner-occupant or shall let or hold out to another for occupancy any dwelling or family unit, for the purpose of living therein, which is not safe, clean, sanitary and fit for human occupancy, and which does not comply with the particular requirements of sections 78-17.1 through 78-17.8 of this chapter."

Defendants specifically alleged that the premises were in violation of sections 78-13.1 (Water closet), 78-13.6 (Maintenance of sanitary facilities), 78-13.8 (Heat to be furnished, 78-13.11 (Hot water to be furnished), 78-17.1 (Foundations, exterior walls and roofs — maintenance), 78-17.2 (Floors, interior walls and ceilings — maintenance), 78-17.3 (Windows, doors and hatchways — maintenance), 78-17.5 (Stairways and porches — maintenance), and 78-17.7 (Facilities, equipment, chimneys — maintenance).

Plaintiff moved to strike both affirmative defenses. The court granted plaintiff's motion and the cause proceeded to trial. Plaintiff was awarded judgment in the amount of $355 and costs, representing the rent due for the months of March, April and May, 1968, and the unpaid portion of the rent due from February. Defendants appeal from this judgment.

Defendants initially contend that their first affirmative defense was improperly stricken. However, plaintiff maintains that this first affirmative defense was properly stricken because: (1) an attorney retained to prosecute a single action for possession has no authority to compromise his client's rights as to past or future rent due under the leasing agreement and (2) there was no consideration for the extinguishment of the past due rent.

Plaintiff correctly recites an abstract proposition of law regarding the implied authority of a lawyer retained to prosecute an action for possession, but defendants allege that counsel, in fact, did act within the scope of his authority in the case at bar in entering into this agreement on behalf of his client. We hold that ...


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