{ "id": 5470783, "name": "William J. Sheldon, Appellee, v. J. A. Sutherland, Appellant", "name_abbreviation": "Sheldon v. Sutherland", "decision_date": "1921-11-29", "docket_number": "Gen. No. 26,533", "first_page": "598", "last_page": "603", "citations": [ { "type": "official", "cite": "222 Ill. App. 598" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "14 Ill. 332", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2586965 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill/14/0332-01" ] }, { "cite": "151 Ill. App. 419", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2634624 ], "opinion_index": 0, "case_paths": [ "/ill-app/151/0419-01" ] } ], "analysis": { "cardinality": 476, "char_count": 10815, "ocr_confidence": 0.532, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3281202880940163 }, "sha256": "d3b81e679fd7bd73cc841e60b3e54b6a65af63dbfe4851cd992f575f53da667a", "simhash": "1:cb1c0d21507a2642", "word_count": 1894 }, "last_updated": "2023-07-14T18:22:09.223782+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William J. Sheldon, Appellee, v. J. A. Sutherland, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Gridley\ndelivered the opinion of the court.\nOn May 1,1920, plaintiff filed a complaint in forcible detainer before a justice of the peace in which he alleged that he is entitled to the possession of certain premises, viz.: \u201cStorerooms known as Nos. 113 and 115 Marion Street in the Village of Oak Park,\u201d Cook county, Illinois, and that defendant \u201cunlawfully withholds\u201d the possession thereof from him. On the same day a summons was served upon the defendant. On May 6, 1920, there was a hearing before the justice resulting in a judgment that plaintiff recover of the defendant the possession of the premises mentioned in the complaint. Defendant perfected an appeal to the circuit court of Cook county, and on July 16, 1920, there was a trial de novo in that court before a jury. They returned a verdict finding defendant \u201cguilty of unlawfully withholding from the plaintiff the possession of the premises described in plaintiff\u2019s complaint, \u2019 \u2019 and on August 16, 1920, the court, after overruling defendant\u2019s motions for a new trial and in arrest of judgment, entered judgment that plaintiff have restitution from defendant of said premises, that a writ of restitution issue and that plaintiff recover his costs. Defendant by this appeal seeks to reverse the judgment.\nThe following facts are disclosed from the evidence: On March 20, 1916, Robert A. and Charles R. Lackey, by written lease of that date, demised \u201cthe first floor and basement and shed adjoining .the rear of the building known as premises Nos. 113 to 115 Marion street, Oak Park, Illinois,\u201d to defendant for a term of one year, beginning May 1,1916 and ending April 30, 1917, at a rental of $1,260, payable at the rate of $105 per month. Upon the expiration of said term defendant continued to occupy the premises without interruption, as a tenant from year to year, and was so occupying them on February 17, 1920, upon the same terms and for the same rental, when plaintiff, purchaser of the premises from the Lackeys on January 31, 1920, served the following paper or notice, dated February 17, 1920, upon defendant, signed by plaintiff by an agent:\n\u201cI hereby demand possession on or before May 1st, 1920, of the following premises, to-wit\n\u201cThe store at 113-115 Marion street, Village of Oak Park, Cook County, State of Illinois; I being entitled to the possession thereof not later\"than May 1st, 1920.\u201d\nOn May 1, 1920, while defendant was still in possession of the premises, and before that day had expired on which defendant had been notified to vacate, plaintiff filed his complaint in forcible detainer before said justice of the peace and defendant was served with a summons.\n. Counsel for defendant contended in the circuit court, and here contend as grounds for a reversal of the judgment of that court, that the said notice was insufficient to support the judgment (1) because it is not a \u201cnotice to quit,\u201d or a notice of the \u201ctermination\u201d of the lease, being merely a demand for possession of the premises;\n(2) because the notice, even if otherwise sufficient, did not purport to terminate the lease until midnight of May 1, 1920, and that all that day defendant was in lawful possession of the premises and did not on that day \u201cunlawfully withhold\u201d the possession thereof from plaintiff as charged in the .complaint, and that, hence, plaintiff\u2019s action was prematurely brought; and\n(3) because the notice did not properly terminate the lease as to all of the premises mentioned.in the lease, in that said notice covered only \u201cthe store at 113-115 Marion street,\u201d while the lease demised \u201cthe first floor and basement and shed adjoining the rear of the building known as premises Nos. 113 to 115 Marion street. \u2019 \u2019\nAll three points have been elaborately discussed by counsel for the respective parties in their printed briefs and arguments here filed and we have been favored with oral arguments. We have reached the conclusion that the judgment of the circuit court must be reversed because the action was prematurely brought and because the notice did not include all of the premises mentioned in the lease. We deem it unnecessary, therefore, to consider the first point raised by defendant\u2019s counsel.\nIn Bedell v. Clark, 151 Ill. App. 419, the landlords commenced an action of forcible detainer by complaint filed with a justice of the peace on September 1, 1908, to recover certain premises then in the possession of a tenant who had been a tenant from month to month and entitled, under section 6 of the Landlord and Tenant Act [Cahill\u2019s Ill. St. ch. 80, \u00b6 6], to a 30 days\u2019 notice in writing of a termination of the tenancy. On July 29, 1908, the landlords caused to be served on the tenant a written notice to quit and to deliver possession of the premises on September 1, 1908. On August 1, 1908, the landlords, collected the rent for said month of August. On the trial before the justice a judgment was entered against the tenant for the recovery of the premises, and on a trial de novo before the county court of Wabash county a similar judgment was rendered, and the tenant appealed to the Appellate Court for the Fourth District. In reversing the judgment, the Appellate Court in its opinion said (pp. 421-2) that the only question was whether or not the suit had been prematurely brought; that if the landlords had desired to terminate the tenancy at the end of the month of August the notice should have been given to the tenant for him to surrender on the last day of August, as that month would expire on that day at midnight; and that that was the latest date the notice should have specified to enable the landlords to bring their suit on September 1,1908. The court further said (p. 423):\n\u201cThe notice specified definitely that the appellant was to deliver up the possession of these premises on the first day of September, the very day this suit was brought for\" possession. It is not sufficient to say that the suit could have been maintained if the notice had specified a day earlier for the delivery of possession, and that the tenant understood his tenancy was intended to be terminated at the end of the period to which he had paid rent. Neither is it sufficient that the notice may give more days\u2019 notice than was required. It fixed the date of delivering up possession on a day certain, September 1,1908; and the appellant by that notice had the whole of that day in which to deliver the premises or vacate them,- that is, until midnight .of that day, and the suit was therefore prematurely brought.\u201d\nWe think that the holdings in the Bedell case are decisive of the question that the present action was prematurely brought. The tenancy of the defendant in the present case was clearly one from year to year, though the rent was paid monthly, and such tenancy, in order to terminate it, required a proper notice in writing to be served upon the defendant at least 60 days prior to April 30, 1920 (section 5, Landlord & Tenant Act [Cahill\u2019s Ill. St. ch. 80, \u00b6 5]). As in effect said in the Bedell case, if the plaintiff desired to terminate the tenancy at the end of the year (April 30, 1920) the notice should have been given to the defendant for him to surrender tin April 30, 1920, as that at least was the latest date the notice should have specified to have enabled the plaintiff to have brought the suit, as he did, on May 1, 1920. Although the notice was served more than 60 days prior to April 30, 1920, the plaintiff therein demanded possession \u201con or before May 1st, 1920.\u201d After the service of this notice the defendant paid the rent for the months of March and April, 1920. By the notice defendant was given until midnight May 1, 1920, to vacate. In Richardson v. Ford, 14 Ill. 332, 333, it is said: \u201cWhere an act is to be done on a particular day, the party has the whole of that day in which to perform it.\u201d And we do not think that the use of the words \u201con or before May 1st\u201d makes any difference. Defendant was not required to vacate before the expiration of that day, May 1st, and before said day had expired the present suit was commenced and defendant served with summons.\nAs to the third point raised by defendant\u2019s counsel, it is to be observed that by the terms of the original lease the demise was \u201cthe first floor and basement and shed adjoining the rear of the building known as premises Nos. 113-115 Marion Street.\u201d The notice in question demanded possession only of \u201cthe store at 113-115 Marion Street.\u201d In 2 Taylor\u2019s Landlord and Tenant (9th Ed.), eh. XI, sec. 483, where the subject of notice to quit is under discussion, it is said: \u201cThe notice' must include \u2022 all the premises held under the same demise; for a landlord cannot determine the tenancy as to a part of the thing demised, and continue it as to the residue.\u201d In the English case of Doe d. Morgan v. Church, 3 Campbell\u2019s Rep. 71, decided in 1811, Le Blanc, J., said (p. 73): \u201cIf there be a joint demise of land and tithes at a joint rent, it is clear that the landlord cannot determine the tenancy as to the land, without a,t the same time determining it as to the tithes\u201d; and that \u201che was inclined to think that, although the tenant had only a license to take the tithes, the notice ought to extend to them.\u201d In the present case, we do not think that the notice demanding possession only of \u201cthe store\u201d at 113-115 Marion street can properly be construed to include the \u201cbasement\u201d and the \u201cshed adjoining the rear of the building\u201d known as Nos. 113-115 Marion street, and hence, in our opinion, the notice was insufficient to terminate the lease as to the entire premises.\nFor the reasons indicated the judgment of the circuit court is reversed.\nReversed,\nBarnes and Morrill, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice Gridley" } ], "attorneys": [ "Tenney, Harding & Sherman, for appellant; Horace Kent Tenney and Harry A. Parkin, of counsel.", "Harris, Reinhardt & Vanier, for appellee; Harry C. Levinson and Leo W. Hoffman, of counsel." ], "corrections": "", "head_matter": "William J. Sheldon, Appellee, v. J. A. Sutherland, Appellant.\nGen. No. 26,533.\n1. Forcible entry and detainer\u2014time for bringing suit under notice. A forcible detainer suit was prematurely brought on May 1, where the owner served a notice on the holdover tenant from year to year, more than 60 days before April 30, demanding possession not later than May 1, as such notice gave the tenant until midnight of said May 1 to vacate.\n2. Landlord and tenant\u2014sufficiency of notice as termination of tease of entire premises. A notice demanding possession of only \u201cthe store\u201d at a stated number was insufficient to terminate a lease of the first floor and basement and the shed adjoining the rear of-the building in question. ' <\nAppeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.\nReversed.\nOpinion filed November 29, 1921.\nTenney, Harding & Sherman, for appellant; Horace Kent Tenney and Harry A. Parkin, of counsel.\nHarris, Reinhardt & Vanier, for appellee; Harry C. Levinson and Leo W. Hoffman, of counsel." }, "file_name": "0598-01", "first_page_order": 628, "last_page_order": 633 }