APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 20, 1976.
Defendant appealed from the entry of summary judgment in favor of plaintiffs, contending that: (1) the granting of plaintiffs' motion for summary judgment on the basis of defendant's admission that it owed rent to plaintiffs was erroneous; (2) plaintiffs waived their right to bring an action for forcible entry and detainer by contemporaneously exercising their right to distrain for rent under the Illinois landlord and tenant statute (Ill. Rev. Stat. 1973, ch. 80, par. 28) and the lease; and (3) the provisions of the five-day notice to defendant upon which plaintiffs' action for forcible entry and detainer was predicated barred plaintiffs from terminating defendant's right to possession.
The following facts pertinent to this appeal appear in the record.
Defendant, on October 18, 1966, leased certain property from the Server Company. Server, in October, 1970, assigned its rights under the lease to USA I Lehndorff Vermoegensverwaltung GmbH & Cie., one of the plaintiffs in the instant case. Defendant opted to extend the lease from February 28, 1972, to May 31, 1977. Among other provisions, the lease required defendant to pay a base rent of $850 per month plus 10% of its monthly gross receipts above $21,000. The lease also provided that in the event of a default, all rent for the remainder of its term would become due and payable. On December 20, 1974, plaintiffs served defendant with a five-day notice which stated that defendant owed plaintiffs rent in the amount of $18,130.96 plus percentage rent for the period from September 1 to November 30, 1974. The notice further stated:
"And you are * * * notified that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the expiration of five days after service of this notice your right to possession under the lease of said premises will be terminated; provided that this shall not terminate said lease."
On the same day, plaintiffs levied a distress warrant against defendant, authorizing the Cook County Sheriff to distrain defendant's personal property for overdue rent in the amount of $42,780.96 plus percentage rent for the period from September 1 to November 30, 1974, as a result of which various items of defendant's personal property on the premises were seized and inventoried, as permitted by statute. (Ill. Rev. Stat. 1973, ch. 80, par. 16, 17.) Thereafter, plaintiffs brought an action to enforce the distress levy.
Subsequently, on January 2, 1975, plaintiffs filed a separate action for forcible entry and detainer against defendant wherein they alleged that they were entitled to possession of the premises leased to them for overdue rent in the amount of $42,780.96 for the period from September 1, 1973 to December 18, 1974, plus percentage rent for the period from September 1 to November 30, 1974. Pursuant to Illinois Supreme Court Rule 216 *fn1 (Ill. Rev. Stat. 1973, ch. 110A, par. 216), plaintiffs requested that defendant admit the truth of specified facts and the genuineness of specified documents, including an admission that defendant claimed possession of the premises under the written lease dated October 18, 1966; that such lease was genuine; that defendant owed rent, both base and percentage, under the lease and, specifically, $850 base rent for the month of December, 1974. Although plaintiffs adverted in their complaint to the written lease on which their cause of action was predicated, they did not attach the document itself or a copy of it to their complaint. Thereafter, on February 15, 1975, plaintiffs filed an amended complaint, seeking possession only for nonpayment of rent.
Defendant filed an answer, denying that plaintiffs were entitled to possession of the leased premises. Complying with the requirements of Rule 216, defendant admitted that its claim to possession was derived from the written lease dated October 18, 1966; that such lease was genuine; that it owed rent, both base and percentage, under the lease, but further stated that the amount of rent was in dispute and, specifically, that it owed $850 base rent for the month of December, 1974, was prepared to pay such rent on December 20, 1974, and refrained from doing so because of plaintiffs' distress levy.
Plaintiffs then filed a motion for summary judgment, alleging that defendant's admission of overdue rent under the lease entitled them to possession of the leased premises. In response, defendant filed objections and a counter-motion for summary judgment in its favor. It admitted that it owed rent under the lease, but qualified its admission to mean that it owed base rent of $850 for December, 1974 only, which it was prepared to pay, plus unspecified percentage rent, which it was also prepared to pay but refrained from doing because of plaintiffs' unwillingness to accept its statements of gross receipts. In support of its response, defendant further alleged:
"Under the law, the making of a distress for rent previously due constitutes a waiver of the right to re-enter the leased premises, since by the distraint, the landlord recognizes the relationship of Landlord and Tenant and the lease still in existence.
[Plaintiffs' action to enforce the distress levy for overdue rent] constitutes a further waiver of plaintiffs' right to proceed in Forcible Detainer.
The Five Day Notice upon which the Forcible Detainer proceeding was predicated, * * * since it states by its terms that ...