{ "id": 2463328, "name": "C. F. Birtman Company v. John R. Thompson", "name_abbreviation": "C. F. Birtman Co. v. Thompson", "decision_date": "1907-10-04", "docket_number": "Gen. No. 13,293", "first_page": "621", "last_page": "627", "citations": [ { "type": "official", "cite": "136 Ill. App. 621" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "204 Ill., 513", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "24 Ill., 610", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5287144 ], "opinion_index": 0, "case_paths": [ "/ill/24/0610-01" ] }, { "cite": "15 Ill., 353", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436669 ], "opinion_index": 0, "case_paths": [ "/ill/15/0353-01" ] }, { "cite": "130 U. S., 611", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3537490 ], "opinion_index": 0, "case_paths": [ "/us/130/0611-01" ] }, { "cite": "146 Ill., 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3066557 ], "opinion_index": 0, "case_paths": [ "/ill/146/0481-01" ] } ], "analysis": { "cardinality": 629, "char_count": 13619, "ocr_confidence": 0.547, "pagerank": { "raw": 8.357403634365073e-08, "percentile": 0.48133173015106284 }, "sha256": "eb641ff0c8a6482573897ff94e66e9bc5fc93d56be0c7ba174fca560804fd2a7", "simhash": "1:5d8397bbcde9f942", "word_count": 2427 }, "last_updated": "2023-07-14T18:41:17.402727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. F. Birtman Company v. John R. Thompson." ], "opinions": [ { "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nIt is conceded in behalf of appellee that \u201cif a lessor breaks a covenant in a lease, by him to be kept and performed, the lessee may sue for damages for the breach of such covenant, and that in an action by a lessor for rent the lessee is generally allowed to set up his damages by way of recoupment.\u201d Sutherland on Damages, 3rd ed., vol. 3, section 876, page 2627. The same author states (page 2611) that in case of breach of the landlord\u2019s covenant to repair, the tenant may, among other remedies, abandon the premises if because of want of repair they have become untenantable, or he may occupy them without repair and recoup his damages in an action for the rent. See also Keating v. Springer, 146 Ill., 481\u2014495, and cases there cited. The damages which the tenant would in the latter case be entitled to recoup are such as he would be entitled to recover had he chosen to exercise his right to sue for damages for the breach of the covenant to repair, in which case the lessor would be chargeable with the difference between the rent provided in the lease and the rental value of the premises during the time the breach continued. We concur therefore in appellant\u2019s contention that if by reason of a breach on the part of the landlord of his covenant to supply heat, the premises in controversy were rendered untenantable, and appellant suffered damage by reason of such breach, the measure of damage would be the difference between the rent to be paid with heat properly supplied and the rental value without such heat so long as the breach of covenant continued. In Bien & Co. v. Hess, 42 U. S. Circuit Ct. of App., 421\u2014422, it is said that the measure of damages, viz.: \u201cthe impaired rental value of the premises during the time of the existence of the breach is sanctioned by the authorities quoted on both sides.\u201d See also Crane v. Hardman, 4 E. D. Smith, 339.\nIt is urged in behalf of appellee that the lessor did not covenant to keep the leased premises warm, that all he was bound to do was to supply steam heat and that if such steam heat did not warm the demised premises because of defects in the radiators it was no concern of the lessor, since by the terms of the lease tire lessee covenants that it had received the premises in good order and repair, and that it would \u201ckeep said premises in good repair.\u201d This contention is altogether too technical in view of the language of the covenant of the lease above quoted, to supply heat. By its terms the lessor was to supply steam heat, and if his radiators or other means of supply were inadequate it was nevertheless his business to find a way to supply the heat. He agreed to supply steam heat without specifying by what means it was to be supplied, and a covenant of this kind could be complied with only by supplying such quantity of heat as was reasonably adequate to make the premises tenantable for an \u201celectrical and statical fixtures salesroom and office,\u201d for which purpose they were leased. The lessor further covenanted that he should not be held liable for failure to supply heat when \u201ccaused by unavoidable accident to the apparatus or during repairs.\u201d\nIt appears, however, from the evidence apparently that the alleged failure to supply'was not owing to defects in the radiators, but in part at least to the lessor\u2019s failure to properly maintain his fires. Ho question of the lessee\u2019s liability to keep the premises in good repair is involved.\nIt is further claimed on behalf of appellee that even if the evidence showed the lessor did fail to supply the proper amount of steam heat the judgment should not be opened because it is said \u201cappellant did not show that it had suffered any legal damage by the alleged failure to supply steam heat.\u201d There was evidence introduced on the motion to set aside the judgment entered by confession and for leave to plead to the declaration and defend upon the merits, tending to show that appellant had paid wages to its employees for a considerable time during which they were unable to work because of the alleged breach by the lessor of the covenant to supply heat. In Bien & Co. v. Hess, above referred to, the breach of covenant relied upon by the lessee was the failure of the lessor\u2014who had covenanted to repair \u2014to repair a break in the cement floor of the cellar of the demised premises where the tenant had its engines and boilers. It appears that hy reason of the break in the floor there was an influx of water during certain hours of every day for a certain period, at which time it was necessary for the tenant to divert its engines from their usual and proper work in order to operate pumps to keep the water from reaching the fires under the lessee\u2019s boilers. While thus engaged the operation of the tenant\u2019s lithographing presses was suspended and there was evidence tending to show that the tenant was compelled to and did work its employees at night to do the work which could have been done during regular business hours, except for the landlord\u2019s breach of covenant in failing to repair the cellar floor. By thus working overtime the tenant\u2019s output of work was the same as it would have been if the establishment had run during its regular hours from 8 a. m. to 5 :30 p. m. The court said that \u201cthe wages paid to these men for working after hours in order to accomplish the work which hut for the leak they could have done in working hours would seem to be the exact measure of defendant\u2019s loss.\u201d In Mining Co. v. Fraser, 130 U. S., 611, a charge to the jury that the \u201cwages of the men employed in the mill whose time was lost while the mill was idle\u201d was a proper element of damage, was approved by the Supreme Court. Appellee\u2019s counsel endeavor to distinguish these cases from that at bar. We deem it immaterial, however, whether or not appellant paid more wages than it would have paid if the steam heat had been furnished as the lease provided. If its employees while paid full wages were unable to work during hours for which they were receiving wages, such wages for unemployed time were equivalent to extra wages for the time they were able to work to the same extent as if they had been actually paid extra wages for overtime at night to do the work which but for the lessor\u2019s breach of covenant would have been done in regular business hours. It is said that in the case at bar no showing was made that appellant\u2019s employees did not accomplish as much during the hours they worked as they would if no breach of the covenant to supply heat had occurred. It would seem, however, scarcely necessary to introduce specific proof that men did not accomplish as much in part of a day as when working full time, in the absence of evidence to the contrary. In Crane v. Hardman, supra, where it was sought to recoup damages for a breach of contract in not furnishing steam, it was said \u201cthe right to recoup such damages cannot be denied. * * * As to the amount surely it was not excessive to allow the defendants their actual loss while the works were idle and the proof was direct that the defendants\u2019 men could not work in consequence.\u201d\nIt is apparently claimed that the proof was not sufficient to entitle appellant to recover damages as claimed. It is not necessary in support of a motion of this character to set forth all the evidence in detail. It is sufficient to show facts material to the issue sufficient to make it clear that the issues are such as should be submitted to a jury. In Lake v. Cook, 15 Ill., 353-355, it was said that \u201cCourts of law exercise an equitable jurisdiction over judgments entered by confession upon * * * warrants of attorney\u201d; and that \u201cif the case is involved in doubt or the testimony is so contradictory that the truth cannot be ascertained with reasonable certainty an issue should be directed to try the question; in other words, the defendant should be let into a defense on the merits.\u201d In Pitts v. Magie, 24 Ill., 610, it is said: \u201cThe only question is whether such a case was presented by the affidavits read on both sides as should be submitted to the decision of a jury.\u201d In the later case, Gilchrist Trans. Co. v. North Grain Co., 204 Ill., 513, it is said: \u201cIf the affidavits on the part of the defendant show a meritorious defense the court is not authorized to try the case on affidavits. * * * The. right of the defendant is to have the case passed upon by a jury.\u201d The fact that in this case the trial court of his own volition heard the motion upon evidence taken in open court instead of upon affidavits does not affect the principle stated. We are compelled, for reasons indicated, to the conclusion that the judgment of the Superior Court should be reversed and the cause remanded, and it is so ordered.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Freeman" } ], "attorneys": [ "H. M. Matthews, for appellant.", "West, Ecki-iart & Taylor, for appellee." ], "corrections": "", "head_matter": "C. F. Birtman Company v. John R. Thompson.\nGen. No. 13,293.\n1. Landlord and tenant\u2014covenant of lease to furnish heat construed. Where by the terms of a lease the landlord undertakes to supply steam heat, it is his business to see to it that his radiators and other means of supply are adequate, and that sufficient heat is supplied, and this notwithstanding the tenant\u2019s acknowledgment in the written lease that he has received the premises in good order and his covenant to keep the same in good repair.\n2. Landlord and tenant\u2014damages recoverable for failure of former to furnish- heat as agreed. Loss of time of employees and resulting extra wages required to be paid, arising through the landlord\u2019s failure to supply heat as agreed, are proper to be considered in estimating the tenant\u2019s damages.\n3. Judgment by confession\u2014what evidence 'sufficient to entitle allowance of motion for leave to plead. In support of a motion to open up a judgment entered by confession, it is not essential to set forth all the evidence in detail; it is enough to show facts material to the issue, sufficient to make it clear that the issues are such as should be submitted to a jury. The rule is the same regardless of whether the evidence is shown by affidavits or by testimony ore tenus.\nJudgment by confession. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1906.\nReversed and remanded.\nOpinion filed October 4, 1907.\nRehearing denied October 18, 1907.\nStatement by the Court. Under a warrant of attorney contained in a lease, appellee on May 5, 1906, caused to be entered in the Superior Court of Cook county a judgment by confession against appellant for the sum of $1,099.21 and costs. Appellant made a motion in the Superior Court to set aside the judgment and for leave to plead. Upon the hearing of the motion the court entered an order overruling same. This is an appeal from that order.\nOn October 9, 1902, appellant leased of one Charles H. Slack the fifth floor of the building at \u00a1Nos. 45 to 49 Randolph street, Chicago, for a term of two and one-half years, commencing \u00a1\u00a1November 1, 1902, and ending April 30, 1905. The lease provides that the lessee \u201chas examined and knows the condition of the premises and has received the same in good order and repair\u201d and that said lessee will keep said premises in good repair. It also provides that the lessor is f\u201cto supply steam heat without charge from September 1st to April 30th each year during the continuance of the lease, and shall not be held liable for failure to supply same if caused by unavoidable accident to the apparatus or during repairs.\u201d Appellant occupied and paid rent for said premises from \u00a1\u00a1November 1, 1902, to January 31, 1905, when it removed therefrom. The lessor Slack assigned the lease to appellee, whose interest began in February or the first of March, 1905, after appellant had vacated the premises. Appellant did not pay rent for the months of February, March and April, 1905. The judgment, which appellee caused to be entered against appellant, covers the rent of the premises for said months, interest and attorneys\u2019 fees.\nAppellant claims th\u00bft in the cold weather, during which it occupied the premises, the lessor Slack did not heat said premises sufficiently and that as a consequence its men were unable to work for a part of each cold day. It estimates that during the winter of 1903\u20144 it paid its men $159.02 for time when they did not work because the floor was not sufficiently heated. Appellant urged in the Superior Court and is now urging in this court as the reason why said judgment should be opened, that it is entitled to recoup against the three months\u2019 rent it did not pay, the estimated amount paid its men for time when they did no work.\nAppellant on November 10, 1904, leased other premises, the term to begin May 1, 1905. It is claimed, however, that the premises in controversy were so inadequately heated during the early part of the winter that in December, 1904, appellant secured a supplemental lease of its newly leased premises and moved in to them in January, 1905, vacating the premises in question, without waiting until the lease in controversy expired.\nAppellant first submitted to the Superior Court a verified motion and affidavit in support, of its application to set aside the judgment, but the court declined to hear the matter upon said verified motion and affidavit and directed the parties to appear with witnesses in support of and against the motion. Pursuant to such direction appellant appeared with its witnesses in support of the motion to set aside the judgment and said witnesses were examined in open court. Appellee offered no evidence.\nH. M. Matthews, for appellant.\nWest, Ecki-iart & Taylor, for appellee." }, "file_name": "0621-01", "first_page_order": 657, "last_page_order": 663 }