{ "id": 5093532, "name": "Albert Moses v. D. J. Loomis, E. W. Stevens and E. S. Hopkins", "name_abbreviation": "Moses v. Loomis", "decision_date": "1894-11-12", "docket_number": "", "first_page": "342", "last_page": "345", "citations": [ { "type": "official", "cite": "55 Ill. App. 342" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "13 Wend. (N. Y.) 41", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2015722 ], "opinion_index": -1, "case_paths": [ "/wend/13/0041-01" ] }, { "cite": "21 Wend. (N. Y.) 628", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2151880 ], "opinion_index": -1, "case_paths": [ "/wend/21/0628-01" ] }, { "cite": "72 N. Y. 141", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 532844 ], "opinion_index": -1, "case_paths": [ "/ny/72/0141-01" ] }, { "cite": "90 Ill. 368", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2756040 ], "opinion_index": -1, "case_paths": [ "/ill/90/0368-01" ] }, { "cite": "73 Ill. 216", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5319728 ], "opinion_index": -1, "case_paths": [ "/ill/73/0216-01" ] }, { "cite": "63 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2610852 ], "opinion_index": -1, "case_paths": [ "/ill/63/0043-01" ] }, { "cite": "20 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2596681 ], "opinion_index": -1, "case_paths": [ "/ill/20/0101-01" ] }, { "cite": "50 Ill. App. 534", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5123281 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0534-01" ] }, { "cite": "44 Ill. App. 526", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5068307 ], "opinion_index": 0, "case_paths": [ "/ill-app/44/0526-01" ] }, { "cite": "69 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635454 ], "opinion_index": 0, "case_paths": [ "/ill/69/0403-01" ] }, { "cite": "137 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440613 ], "opinion_index": 0, "case_paths": [ "/ill/137/0009-01" ] }, { "cite": "148 Ill. 342", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "52 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5301241 ], "opinion_index": 0, "case_paths": [ "/ill/52/0283-01" ] } ], "analysis": { "cardinality": 400, "char_count": 5978, "ocr_confidence": 0.483, "pagerank": { "raw": 1.2076817413979274e-07, "percentile": 0.5951621117679061 }, "sha256": "10f857151b02b8d3cf619135d7637a92de599bdc53c488feda3c84e4dbc21240", "simhash": "1:97762fe4047f9480", "word_count": 1063 }, "last_updated": "2023-07-14T16:55:31.699098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Albert Moses v. D. J. Loomis, E. W. Stevens and E. S. Hopkins." ], "opinions": [ { "text": "Mr. Justice Gary\ndelivebed the opimioh of the Coubt.\nIt is probable that D. J. Loomis and E. W. Stevens were tenants of two stores under the appellant, and had sublet a part of the premises to E. S. Hopkins.\nThe appellant sued the three in forcible detainer, his complaint being that Loomis and Stevens had cut away some joists, which act gave him the right to re-enter.\nUpon such a case there can be no claim that Hopkins is liable in this action, as it is not pretended that any notice to quit was given to him. Sub-tenants can not be put out by proceedings against the original tenant only. Leindecker v. Waldron, 52 Ill. 283.\nIndeed, the appellant only urges that it was error to orally instruct the jury to find in favor of Hopkins; if it was, it was error without prejudice, and no cause for reversing the judgment. Chi. Pub. Stock Exch. v. McCloughry, 148 Ill. 342. But the record indicates that the appellant excepted to the matter, not the manner, of the instruction.\nAs to Loomis and Stevens the court instructed the jury:\n\u201c If you believe from the evidence that the plaintiff, Moses, verbally authorized the defendants, Stevens and Loomis, to make the change, if any, which you may believe from the evidence were made in the building, this was a waiver by Moses of the provisions in the lease that no alteration should be made without the written consent of Moses, as that provision was inserted in the lease for the benefit of Moses and he had the right to waive it.\u201d\nIf there was a lease under seal, that instruction was wrong, as nothing by parol would modify the lease. B. & O. R. R. v. Ill. Cent. R. R., 137 Ill. 9.\nBut if not under seal, then it could be changed by subsequent parol agreement. Bishop v. Busse, 69 Ill. 403.\nRow on this record we can not see any document which, was in evidence below. The language of the bill of exceptions as to such documents is : \u201c Said lease was admitted in evidence and marked exhibit A.\u201d \u201cSaid notice was marked exhibit B.\u201d Similar language is used as to some exhibits put in by Hopkins.\nIn the bill are documents .marked exhibits A and B, and they are near to the words referring to exhibits as A and B, but there is no statement that these are the same; no words of identification. Imperial Hotel v. Claflin, No. 5233, citing Spangenberg v. Charles, 44 Ill. App. 526, Charles v. Remick, 50 Ill. App. 534, and other cases not yet reported.\nThe judgment must be affirmed.", "type": "majority", "author": "Mr. Justice Gary" } ], "attorneys": [ "Appellant\u2019s Bribe, Straxjs & Bruggemeybb, Attorneys.", "Lon&eneokeb & Jampolis, attorneys for appellees." ], "corrections": "", "head_matter": "Albert Moses v. D. J. Loomis, E. W. Stevens and E. S. Hopkins.\n1. Forcible Detainer\u2014Sub-tenants Necessary Parties.\u2014Sub-tenants can not be put out of possession by proceedings against the original tenant only.\n2. Reversible Error\u2014What is Not.\u2014Error without prejudice is not sufficient cause for reversing a judgment.\n3. Instructions\u2014Objections to Giving Orally\u2014Practice.\u2014In order to assign error for giving of instructions orally, the objection must be taken to the manner of giving them, not to the matter of the instructions.\n4. Contracts\u2014Under Seal\u2014Not to Be Modified by Parol.\u2014 Alease . under seal can not be. modified by a parol contract, but if not under seal it can be changed by a subsequent parol agreement.\nMemorandum.\u2014Forcible detainer. In the Circuit Court of Cook County, on appeal from justice\u2019s court; the Hon. Francis Adams, Judge, presiding. Trial by jury; verdict of not guilty; appeal by plaintiff. Heard in this court at the October term, 1894, and affirmed.\nOpinion filed November 12, 1894.\nStatement of the Case.\nThis is an action of forcible detainer, originally begun before a justice of the peace,, by appellant, the plaintiff below. Judgment was rendered in his favor and an appeal was taken by appellee, Stevens, to the Circuit Court.\nA trial by jury in that court, resulted in a verdict and judgment for the defendants, from which the plaintiff appealed to this court.\nThe appellant is the lessor of the stores located at 454 and 456 41st street, in the city of Chicago; he leased the same to Loomis and Stevens for a term of five years, commencing April 28, 1893.\nThe lease is under seal and contains the following covenant : \u201c And the said parties of the second part further covenants that they will not assign this lease, nor let or underlet the whole or any part of the said premises, nor make any alteration therein, without the written consent of the said party of the first part, under penalty of forfeiture and damages.\u201d\nThe object of the suit was to regain possession of the premises by reason of an alleged violation of the covenant in not obtaining the written consent of the lessor, permitting them to make alterations in said premises. The testimony shows that Loomis and Stevens cut the flooring and four joists that supported a floor in No. 454, and put in a pair of stairs. Two openings were cut, each about two and one-half feet by six feet.\nAppellant\u2019s Bribe, Straxjs & Bruggemeybb, Attorneys.\nParol testimony is inadmissible to vary or contradict the terms of a sealed instrument. Chapman v. McGrew, 20 Ill. 101; Hume v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216; Loach v. Farnum, 90 Ill. 368; Coe v. Hobby, 72 N. Y. 141; Allen v. Jaguish, 21 Wend. (N. Y.) 628,\n\u201cA sealed executory contract can not be released or re. scinded by a parol agreement; thus, where a landlord covenanted to make certain alterations and improvements in a store, and by the same instrument let the store, so to be altered, to a tenant for a term of years, at a stipulated rent, and by reason of the decay of the building, the landlord was forced to change his plan, and accordingly took down the old building and erected a new one, in which he fitted up a store for the tenant, to which change of plan the tenant assented, but such assent was by parol, it was held in an action by the tenant against the landlord for the non-performance of the original covenants, that the evidence of assent was incompetent and inadmissible.\u201d Delacroix v. Buckley, 13 Wend. (N. Y.) 41.\nLon&eneokeb & Jampolis, attorneys for appellees." }, "file_name": "0342-01", "first_page_order": 338, "last_page_order": 341 }