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Hoffman v. Marcus Steel Co.

NOVEMBER 3, 1975.

WILLIAM J. HOFFMAN, PLAINTIFF-APPELLEE,

v.

MARCUS STEEL CO., INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN B. ENGELSTEIN, Judge, presiding.

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

This matter arose when William J. Hoffman filed a forcible detainer action in the circuit court of Cook County against his tenant, Marcus Steel Co., Inc. The tenant filed an answer and counterclaim against Hoffman alleging a prior breach by Hoffman of the covenant of peaceful possession and quiet enjoyment. The trial court, sitting without a jury, entered judgment for the plaintiff. The defendant appeals from this judgment, contending that: (1) the court erred in striking the defendant's counterclaim and failing to require the plaintiff to reply to affirmative matters in that counterclaim and answer; (2) the court erred in entering judgment for plaintiff because the evidence at trial established that the plaintiff had breached the covenant of peaceful possession and quiet enjoyment; and (3) the plaintiff's action should have been barred by the doctrine of retaliatory eviction.

After the plaintiff filed this forcible detainer action, the defendant filed a counterclaim which was incorporated by reference into the defendant's answer. This counterclaim alleged that the plaintiff had breached the covenant of peaceful possession and quiet enjoyment by certain acts which included a failure to repair plumbing which had caused water damage to the leased premises, various unauthorized entries by the landlord's agents and the landlord's failure to deposit rent checks received from the defendant. The plaintiff did not file a reply to the answer and counterclaim. However, there is nothing in the record to indicate that the defendant raised the plaintiff's failure to reply before going to trial.

The court, immediately before trial, struck the defendant's counterclaim, stating that the defendant had not asked the court for leave to file a counterclaim. However, the court stated it would permit the defendant to "put in any proof that the defense desires" concerning "any equitable defenses that are consistent with the pending action." The record demonstrates that the defendant was allowed to introduce evidence on all matters alleged in the counterclaim.

The evidence at trial consisted of the testimony of William J. Hoffman, the present landlord and plaintiff, and Sidney P. Marcus, President of Marcus Steel, the tenant and defendant, and certain exhibits introduced by the parties. The evidence established that Mr. Marcus had signed a lease to occupy the first floor of a building at 440 West Diversey Parkway in Chicago. The lessor when the lease was signed was Herbert A. Kraatz. According to the lease, a furniture store was to be operated on the premises, and the lease was to run from October 1, 1971, through September 30, 1974, with an option to renew. The rent, to be paid monthly in advance, was $140 per month.

The plaintiff purchased the building from the original owner in August of 1972, during the defendant's term of tenancy. The plaintiff testified that he was not told of the existence of a written lease with the defendant and purchased the building with the understanding that the tenant only had an oral month-to-month lease. The defendant then began paying his monthly rent of $140 to the new landlord, the plaintiff. Defendant had admitted into evidence nine rent checks for the months of September, 1972, through May, 1973, which the plaintiff had not deposited until May 9, 1973. The rent was paid in full and on time until the payment of the October, 1973, rent.

In October of 1973, the plaintiff received a check for $130.85 for the October rent. Defendant testified that he deducted $9.15 from the October rent check because the plaintiff had not made certain repairs needed due to water leaking into the leased premises. The plaintiff accepted the check but advised the defendant in a letter dated October 3, 1973, that no such deductions would be allowed in the future.

The dispute in this case revolves around the payment or nonpayment of the rent for November of 1973. The defendant testified that the water leakage problem continued and that two lithographs were damaged by the water. The defendant testified that he therefore deducted $25 from the November, 1973, rent check, which was the value he estimated the lithographs to have. He gave the janitor the November rent check, reduced by $25, and one of the lithographs, which the janitor conveyed to the plaintiff.

The plaintiff testified that he had a conversation with the defendant several days later on November 7, 1973, during which he told the defendant he would accept nothing less than the full rent of $140. Defendant, plaintiff testified, refused to pay November's rent in full, so the plaintiff handed the defendant a five-day notice dated November 7, 1973. Defendant stipulated that he was served with a five-day notice on November 7, 1973. A letter dated that same day sent by the defendant to the plaintiff stated he was sending back his check for $115 that he had tendered previously for the November rent. The plaintiff-landlord then sent defendant a note on November 13, 1973, stating that he was returning the defendant's check for $115 and demanding that the full rent of $140 be paid immediately.

On December 18, 1973, the plaintiff filed a forcible detainer action against the defendant. On December 31, 1973, the plaintiff received a check dated December 29, 1973, for $25 plus the original check previously tendered for the November rent from which the defendant had deducted $25. An accompanying note signed by the defendant indicated that the $25 check was to be used toward the November, 1973, rent. The plaintiff returned these checks to defendant with a note stating that the defendant had already breached the lease.

The defense was centered around defendant's allegation that the plaintiff had breached the covenant of peaceful possession and quiet enjoyment prior to defendant's failure to pay the November rent in full. Defendant's allegations included a failure by the plaintiff to repair water leaks, various trespasses by the plaintiff, missing tools allegedly taken by workmen hired by the plaintiff, and the plaintiff's failure to cash defendant's rent checks for a lengthy period of time.

A major portion of the defendant's evidence involved alleged water leakages from the apartments above the defendant's store. Concerning one incident, the defendant testified that the plaintiff had workmen doing major renovations in the second and third floor apartments above his store. He stated that "somebody had broken a pipe which flooded the rear of the store." However, it was never established who broke the pipe, and the defendant admitted he did not personally observe the pipe or any break in it. Defendant testified that water damage was done to the floor of the leased premises and to some pieces of furniture. The extent and nature of the damage was not given in the testimony.

Defendant testified to another incident where he said that some city workmen had turned off the local water supply for street repairs. When the water was turned on again, water came down from the third floor because "one of the workmen had forgotten * * * to turn off a spigot." Who this "workman" was or who employed him was not clarified.

Other incidents about which defendant testified included water leakage from radiators in an unoccupied upstairs apartment and water leakage from a tub faucet in the third-floor apartment that was left running. The defendant testified that the latter water leakage caused damage to his electrical system which the defendant had repaired. Although the evidence is not entirely clear on this point, it appears that the apartments upstairs from the leased premises were unoccupied during the ...


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