{ "id": 5592809, "name": "DePauw University and Margaret C. Parrett, Appellees, v. United Electric Coal Companies, Appellant", "name_abbreviation": "DePauw University v. United Electric Coal Companies", "decision_date": "1939-01-24", "docket_number": "Gen. No. 9,162", "first_page": "339", "last_page": "347", "citations": [ { "type": "official", "cite": "299 Ill. App. 339" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "55 Am. Dec. 356", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "5 N. Y. 463", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 6100632 ], "opinion_index": 0, "case_paths": [ "/ny/5/0434-01" ] }, { "cite": "25 Ill. App. 225", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4932915 ], "opinion_index": 0, "case_paths": [ "/ill-app/25/0225-01" ] }, { "cite": "52 N. E. 917", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "176 Ill. 210", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3157118 ], "opinion_index": 0, "case_paths": [ "/ill/176/0210-01" ] }, { "cite": "61 Ill. App. 315", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5163674 ], "opinion_index": 0, "case_paths": [ "/ill-app/61/0315-01" ] }, { "cite": "44 Ill. 345", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5222425 ], "opinion_index": 0, "case_paths": [ "/ill/44/0345-01" ] }, { "cite": "134 Pac. 358", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "22 Cal. App. 393", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2363971 ], "opinion_index": 0, "case_paths": [ "/cal-app/22/0393-01" ] }, { "cite": "31 L. R. A. 529", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "43 N. E. 774", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "160 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3127262 ], "opinion_index": 0, "case_paths": [ "/ill/160/0085-01" ] } ], "analysis": { "cardinality": 620, "char_count": 11779, "ocr_confidence": 0.521, "pagerank": { "raw": 2.039343516338385e-07, "percentile": 0.7475623096172789 }, "sha256": "6fa4ed2065830278650f9f9f10cc59552e7f1bc07e6595812c87ca52e4ad0cdf", "simhash": "1:25cf475083efdd58", "word_count": 2031 }, "last_updated": "2023-07-14T18:06:13.021146+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DePauw University and Margaret C. Parrett, Appellees, v. United Electric Coal Companies, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Riess\ndelivered the opinion of the court.\nThe defendant, United Electric Coal Companies, a corporation, has appealed from an order of the circuit court of Vermilion county overruling its motions to strike certain portions of and to dismiss the complaint of the appellees, DePauw University, a corporation, and Margaret C. Parrett, and from judgment against the defendant in the sum of $2,074.31 and costs entered upon default in failure to answer pursuant to rule and on proofs heard.\nThe complaint alleged in substance that on January 26, 1927, John H. Harrison and W. J. Parrett, as lessors, entered into a written 10-year lease with the defendant, as lessee of certain premises therein described ; that each of the plaintiffs holds a half interest in common in the said lease and property, acquired by them as respective legatees and devisees of said lessors, who have since died testate and whose wills were duly probated; that it was verbally agreed and understood between the parties that the term of the lease should be 10 years from the date of possession; that the rooms were completed and possession taken on December 31, 1927, and monthly rents paid thereunder to September 1, 1937, but that defendant failed and refused to pay rentals for the last four months of the 10-year term ending December 31, 1937, and prays judgment for $2,000 and interest as damages.\nThe provisions of the written lease, a copy of which was attached, are as follows:\n\u201cThat the parties, Lessor and Lessee, for and in consideration of One Dollar ($1.00) by each to the other paid, and in further consideration of the mutual undertakings and agreements of the parties hereto, have agreed, and do hereby agree together, in the manner following, to-wit:\n\u201cFirst: Lessor owns, and hereby leases and lets, to Lessee, the certain \u2018Booms\u2019 hereinafter designated, in the office building of Lessor, situated at Nos. 139 and 141 North Vermilion Street, Danville, Illinois, known as the \u2018Adams Building,\u2019 and located on Lot Number Six (6), Block Four (4) North, Bange One (1) East of the Public Square, in Hezekiah Cunningham\u2019s Addition to the City of Danville, Vermilion County, Illinois, To have and to hold said leased premises to Lessee, for the \u2018Term\u2019 hereinafter indicated.\n\u201cSecond: Lessee agrees to pay as rental for said premises, the sum of money, hereinafter designated as \u2018Monthly Bental,\u2019 on the first day of each and every month, during said term.\u201d\nClauses numbered third to seventh concern heating, light, water, elevator service, repairs and maintenance of the premises, and relate generally to terms of cancellation and for surrender of the lease without demand \u2018 \u2018 at the expiration of said term. \u2019 \u2019\n\u201cEighth: This contract shall extend to, and be binding upon, the parties hereto, and their respective heirs, administrators, and executors.\n\u201c \u2018Booms:\u2019 All the Fifth Floor, to be built and arranged approximately as shown on blue prints and specifications prepared by Lewis & Dougherty, architects, with option in the Lessee to modify arrangement of rooms and specifications to meet its requirements.\n\u201c \u2018Term:\u2019 Ten (10) years, beginning on the 1st day of September, 1927, or thereabout.\n\u201c \u2018Monthly Bental:\u2019 Five Hundred ($500.00) Dollars per month; rent to start from time possession is taken.\u201d\nDefendant\u2019s motion to dismiss alleged that the complaint was substantially insufficient in law to state a cause of action; that there can be no recovery under the terms of the written contract attached to and made a part of the complaint; that it has undertaken to extend, by alleged verbal agreements, the 10-year term of the written lease in violation of the statute of frauds, Ill. Rev. Stat. 1937, ch. 59, 2 [Jones Illl Stats. Ann. 55.02], and that such verbal terms were merged in the written agreement.\nStripped of its surplusage, conclusions and allegations as to certain verbal statements or agreements referred to and set up in a bill of particulars, and considering only facts well pleaded concerning the written lease in question, and possession and rental payments thereunder, it appears that the complaint concerned a lease to the defendant of the rooms constituting the fifth floor of the Adams building in the city of Danville, to be built and arranged according to blue prints and specifications prepared by architects named therein and to be used for office purposes by the defendant company; that said lessee agreed to pay as monthly rental on the first day of each and every month during the term of the lease a sum of $500, which rent was to start from the time possession was taken; that the term of said lease was fixed at 10 years, during which term the lessee was \u201cto have and to hold said leased premises\u201d; that said lessee entered into possession of said premises after their completion according to the terms specified, on December 31,1927, and so continued therein and paid such rental of $500 per month for 9 years and 8 months thereafter; that said lease refers to the term as \u201cten years beginning on the first day of September, 1927, or thereabout\u201d and that on said date the rooms were not completed and ready for occupancy and were not occupied by the defendant until 4 months later.\nThe plaintiffs contend that the \u201cterm\u201d of the written lease, when all provisions and purposes thereof, as set forth, are considered together, extended from December 31,1927, to December 31,1937, and that there was, therefore, remaining dne and unpaid such rental of $500 per month for the 4 months of September, October, November and December, 1937.\nThe defendant contends that under the terms of said lease, the 10-year term began on September 1, 1927, and expired on September 1, 1937, at which time possession of the premises was surrendered by it, and to which date its rentals were paid in full.\nThe intention of the-parties is to be gathered from all the provisions of the contract, when considered together, and to ascertain this intention, regard should be had to the nature of the instrument, the condition of the parties executing it and the object and purposes which they had in view. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529.\nA valid term for years may be created to begin in futuro. Where the lease does not expressly fix the beginning of the term, the entire contract will be looked to in order to ascertain, if possible, the intention of the parties. The date of the lease does not necessarily affect the beginning of the term, although it may be regarded as the date of the commencement of the term where no other time is indicated by the agreement. A provision in the lease as to the time from which the rent shall run may be indicative of the intention of the parties as to the beginning of the term. 35 C. J. 973, par. 50; Laskey v. Bew, 22 Cal. App. 393, 134 Pac. 358.\nThe duration of a term, as in the case of its commencement, is governed primarily by the provisions of the lease; and when not precisely defined, it may be ascertained by a reference to the covenant as to rent, or to the amount of rent paid thereunder, or other provisions which, when construed together, make the intention and purposes of the -parties clear. Burris v. Jackson, 44 Ill. 345; Siegel, Cooper & Co. v. Colby, 61 Ill. App. 315, aff\u2019d 176 Ill. 210, 52 N. E. 917; Holmes v. Parker, 25 Ill. App. 225; 35 C. J. 973, par. 51.\nIn 16 R. C. L. 607, section 87, it is said: \u201cA leasehold estate, . . . such as a term for years, may be created at common law to commence in fntnro, for in such a case a present interest vests, called an interesse termini, though not an interest in possession until the lessee enters into possession. The time between the making of the lease and its commencement in possession is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. It is the estate or interest which he has in the land itself by virtue of the lease from the time it vests in possession. \u2019 \u2019 Young v. Dake, 5 N. Y. 463, 55 Am. Dec. 356.\nAssuming that the plaintiff herein sought to dispossess the tenant before the end of the 10-year period, during which he held possession and was regularly paying his rent, can it be said that the construction contended for by the defendant herein would prevail against him? We think not. Under the terms of this contract, it must be taken as bilateral and not unilateral in its effect.\nIt is evident that in construing this lease, the date of which was January 26, 1927, the purpose for which it was entered into, the provisions concerning the building and alteration of the rooms according to the fixed plans and specifications set forth therein; that the date \u201cfirst of September, 1927, or thereabout\u201d is a qualifying phrase apparently used by the parties because the exact date of occupancy could not then be fixed, and the rental was to begin only upon the date of its occupancy for the purposes for which the tenancy was created.\nWe hold that the meaning of the contract, when all of its terms are so construed together, is that neither the date it was written nor the date of \u201cthe first of September, 1927, or thereabout\u201d are controlling in arriving at the exact time when the term provided for in futuro began, but the date of its occupancy for the purposes for which it was altered, when possession was so taken by the tenant, and from which day he began payment of rental at $500 per month made payable monthly during the entire term of the lease, which was fixed at 10 years, can only mean that the written lease began on December 31, 1927, and ended on December 31, 1937.\nIt has frequently been held that where the purposes or provisions of a lease fixed the beginning of its term at some future time according to some definite event to which reference is made, the happening of this event is controlling and may be shown by the evidence.\nWe deem paragraph 6 of the complaint, referring to what was verbally agreed as to the time the term began, and all references thereto in the bill of particulars, to be surplusage and subject to the objection that an attempted verbal understanding would be within the statute of frauds, and this paragraph might well have been stricken. However, from the facts well pleaded, a cause of action upon the written contract is stated, and under the rule that all facts material to the issue that are well pleaded are to be taken as admitted for the purpose of the motion to dismiss, it appears that a good cause of action has been stated, and that the circuit court did not err in overruling defendant\u2019s motion to dismiss the complaint and in entering judgment in the sum of $2,074.31 upon proof heard, for rental and interest remaining due and unpaid for the last 4 months of the term of the written lease.\nAppellant has failed to brief or argue assignment of error for interest allowed, hence we deem said objection to be waived.\nRespective counsel have cited numerous authorities concerning the rules applicable to the construction of contracts in courts of equity as well as cases in which the cause of action was predicated upon oral contracts within the provisions of the statute of frauds. Neither line of decisions have proved materially helpful to the court in the construction of a written contract which was declared upon in a suit at law.\nThe judgment of the circuit court of Vermilion county will therefore be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Presiding Justice Riess" } ], "attorneys": [ "Gunn, Pehwell, Lindley & Burk, of Danville, for appellant.", "Jones, Grant & Sebat, of Danville, for appellees." ], "corrections": "", "head_matter": "DePauw University and Margaret C. Parrett, Appellees, v. United Electric Coal Companies, Appellant.\nGen. No. 9,162.\nOpinion filed January 24, 1939.\nRehearing denied April 4, 1939.\nGunn, Pehwell, Lindley & Burk, of Danville, for appellant.\nJones, Grant & Sebat, of Danville, for appellees." }, "file_name": "0339-01", "first_page_order": 369, "last_page_order": 377 }