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Dasenbrock v. Interstate Restaurant Corp.

SEPTEMBER 1, 1972.

ANTON DASENBROCK ET AL., PLAINTIFFS-APPELLEES,

v.

INTERSTATE RESTAURANT CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Effingham County; the Hon. JACK M. MICHAELREE, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order granting summary judgment in favor of the plaintiffs, Anton and Lillian Dasenbrock, and their son, Clarence Dasenbrock.

Anton and Lillian Dasenbrock were the owners of real estate in Effingham County, Illinois. On February 20, 1966, they executed a written lease with the defendant, Interstate Restaurant Corporation. On April 8, 1967, the Dasenbrocks conveyed the land by quitclaim deed to Clarence Dasenbrock, their son.

On July 19, 1968, Anton and Lillian Dasenbrock filed a notice of default with Interstate. The original complaint and the first amended complaint, which joined Clarence Dasenbrock as a plaintiff, were dismissed on motion. The second amended complaint was filed on December 31, 1969. The complaint was in two counts. Count I alleged that the lessee had defaulted on the lease and owed past due rent to Anton and Lillie Dasenbrock from May 1, 1966, to the date of conveyance. Count II alleged the lessee had defaulted on the same lease and owed past due rent to Clarence Dasenbrock from the date of the conveyance to July 19, 1968.

Plaintiffs and defendant agreed upon a stipulation of facts, which included:

1. That the plaintiffs, Anton and Lillian Dasenbrock were on February 20, 1966, owners of real estate described in paragraph 1 of the second amended complaint, and later, on April 8, 1967, Anton and Lillian Dasenbrock conveyed the real estate to Clarence Dasenbrock, who is presently the owner thereof.

2. That the lease which was executed by the parties in interest in this suit was executed and delivered on February 20, 1966 * * *.

3. That no payments of rent have ever been made by the Lessee to the original lessors or to the present owner, Clarence Dasenbrock, since the date of the execution of the lease up to and including the present time.

4. That notice of default was received by the defendant from Anton and Lillian Dasenbrock on or about July 19, 1968.

5. That no application for any licenses, consents or permits have been made by the lessee to either the City of Effingham building official or to the District Engineer in charge in the area of the location of said real estate, nor has the lessor made any application to either of these two individuals for any licenses, consents or permits. (A, 73-74)

On May 28, 1970, defendant moved for judgment on the pleadings as to Count I. (A, 77) On June 1, 1970, plaintiffs filed a motion for summary judgment as to both Count I and Count II. (A, 83, 89) The court denied defendant's motion and on June 8, 1970, entered a summary judgment on plaintiffs' motion in favor of the plaintiffs in both counts, canceling the lease and awarding a money judgment for rent from May 1, 1966, to April 8, 1967, to plaintiffs in Count I and a money judgment for rent from April 8, 1967, to July 19, to 1968, to plaintiff in Count II.

• 1 The first issue is whether any rent was due under the terms of the lease. In the instant case, lessee is relying upon an interpretation of a single paragraph in the leasehold agreement to exempt himself from liability for rent. However, every paragraph must be read in the light of the entire contract.

• 2, 3 "It is generally said that the purpose of interpretation is to become aware of the `intention of the parties'." (3 Corbin, Contracts 55, § 538 (1960).) "The cardinal rule in the interpretation of a lease is that the court should ascertain and give effect to the intention of the parties, and that in so doing the court may take into consideration the position of the parties, the surrounding circumstances which existed at the time of the execution of the lease, as well as the purpose or object the parties had in mind in entering into the lease * * *." South Parkway Building Corp. v. ...


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