{
  "id": 5204081,
  "name": "Michael C. McDonald v. Lambert Tree and Anna J. Tree",
  "name_abbreviation": "McDonald v. Tree",
  "decision_date": "1897-03-08",
  "docket_number": "",
  "first_page": "134",
  "last_page": "137",
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      "cite": "69 Ill. App. 134"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "50 Ill. App. 181",
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  "last_updated": "2023-07-14T19:55:23.961114+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Michael C. McDonald v. Lambert Tree and Anna J. Tree."
    ],
    "opinions": [
      {
        "text": "Mt?.. Justice Gary\ndelivered the opinion of the Court.\nThis isa,n action upon a guaranty by the appellant of the performance by the lessees and their assigns, of all the covenants to be performed by the lessess, contained in a lease in which the appellees were lessors.\nThe premises were eighty acres of ground expressed in the lease \u201c to be used for a trotting park or race course, and the holding of exhibitions of like character, and for no other purpose or purposes;\u201d and the lessees covenanted that they would \u201c not use or suffer to be used the said premises, or any part thereof, for any illegal or disreputable purpose.\u201d\nIt is not a circumstance material to this decision\u2014though this fact does appear in the case\u2014that the lessees assigned the lease to the Garfield Park Club, and, as may be seen in Webber v. City of Chicago, 50 Ill. App. 110, we some years ago suspected that there was gambling on the races there. But, individually, I am now inexpressibly surprised and shocked to learn from this record that the appellant guaranteed the performance of their covenants by the lessees for the object and purpose of aiding them to obtain facilities for gambling.\nWe need not recite the special plea\u2014the action, as permitted by the statute, is assumpsit; and under the general issue, the defense relied upon\u2014illegality of the contract\u2014is admissible. 1 Ch. PI. 417, Ed. 1828.\nAt the instance of the appellees, the court, among other instructions, gave these:\n\u201c 1. If you find from the evidence that the lease described in the declaration was executed by the parties thereto, and that the defendant McDonald entered into a contract to guarantee the payment of the rent in said lease provided, and that said rents have not been paid as in said lease promised, then. you must find for the plaintiffs and against the defendant McDonald, unless the defendant has proved by a preponderance of the evidence, both that the lessees, at the time the lease was made, intended to put the premises to a use forbidden by law, and also that the plaintiffs in making the said lease knew of the said illegal intent on the part of the lessees, and participated and shared therein, and entered into the lease in question with the design and intention of enabling or assisting the lessees to accomplish their illegal purpose.\n7. The court instructs you that even if it appears from the evidence that the plaintiffs at the time of the execution of the lease in question knew that the lessees intended to put the premises to an illegal use, nevertheless, the lease would be a valid contract and enforceable at law, unless the plaintiffs also intended, at the time the lease was executed, to aid and further the illegal purpose of the lessees, and executed the lease with that intent.\u201d\nOthers, of similar tendency, need not be repeated.\nSpecial questions put by the court to the jury, with the answers of the jury thereto, are as follows:\n\u201c 1st. Were the premises in question knowingly let by the plaintiffs to the lessees, in the declaration named, for the purpose and with the intent on the part of the plaintiffs of enabling the lessees to keep said premises as a place where persons were to be procured or permitted to assemble together for the purpose of betting on the result of horseraces? They were not.\n2d. Were the premises in question knowingly rented by the plaintiffs to the lessees, in the declaration named for the purpose and with the intent on the part of the plaintiffs, or Charles F. Gray, of enabling the lessees to bet money thereupon on the result of horse races ? They were not.\u201d We shall say nothing further about the evidence than that if the instructions quoted are wrong, the evidence was such as to make the error material.\nUpon evidence of the conduct of business at the premises, as shown by this record, it has been decided that the secretary of this Park Club ivas guilty of the offense prohibited by Sec. 127 of the Criminal Code of 1874, and that the premises were a building and yard within that section. Swigart v. The People, 50 Ill. App. 181; 154 Ill. 284. How, under that section, whoever \u201cknowingly rents any such place for such purposes,\u201d i. e., purposes of gaming, etc., as defined in previous parts of the section, is in the same category as he who executes the purposes. The purposes which the statute contemplates are not the purpose of the landlord, which usually is only to get his rent, but the purposes of the tenant as to the use he intends to make of the premises; and if the landlord knows the intention of the tenant, then the landlord, as he intends the natural and probable consequences of his own acts, intends that the tenant shall have the use of the premises for the\u2014to the landlord\u2014known purposes of the tenant. Under such circumstances, it is refining away the meaning of plain words to say that the landlord does not knowingly rent for the prohibited purpose of the tenant. We have held, and are still of the opinion, that to rent with knowledge that the place rented was to be used for the purpose of gambling, is to lose the rent. Ryan v. Potwin, 62 Ill. App. 134.\nSuch purpose by the tenant, and knowledge by the landlord, is all the mutuality required; the necessity of which we assumed in Ryan v. Potwin, 60 Ill. App. 637, where the case did not call for much consideration of the subject.\nIt would not be of a very high\u2014yet fatiguing\u2014order of intellectual labor to go through the multitude of cases cited by the respective parties\u2014show the contradictions between them, and select those which we approve.\nThe mischief intended to be prevented by the statute was not covenants by lessees that they would conduct gambling as a business, but the gambling itself; and one of the means of preventing that mischief is to punish the landlord who lets to a tenant premises which the tenant wants for gambling, and the landlord knows it, and knows, with all the certainty that future events can be known, that if he demises, the premises will be used for gambling.\nAn intention by the landlord to aid or assist the tenant to violate the law is not a prerequisite to his own guilt.\nThe instructions were wrong, and the judgment is reversed and the cause remanded.",
        "type": "majority",
        "author": "Mt?.. Justice Gary"
      }
    ],
    "attorneys": [
      "A. B. Jenics, attorney for appellant.",
      "Wilson, Moore & MoIltaine, attorneys for appellees."
    ],
    "corrections": "",
    "head_matter": "Michael C. McDonald v. Lambert Tree and Anna J. Tree.\n1. Gambling\u2014Letting Premises For\u2014Intention of the Landlord.\u2014 The mischief intended to be prevented by section 127 of the Criminal Code, was not covenants by lessees that they would conduct gambling as a business, but the gambling itself, and one of the means of preventing that mischief is to punish the landlord who lets to a tenant premises which the tenant wants for gambling, and the landlord knows it, and kno'ws with all the certainty that future events can be known that if he demises the premises will be used for gambling.\n2. Same\u2014Intention of Landlord.\u2014An intention by the landlord to aid or assist the tenant to violate the law is not a prerequisite tti his own guilt.\nAssumpsit, on a guaranty. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Bubke, Judge, presiding.\nHeard in this court at the October term, 1896.\nReversed and remanded.\nOpinion filed March 8, 1897.\nA. B. Jenics, attorney for appellant.\nWilson, Moore & MoIltaine, attorneys for appellees."
  },
  "file_name": "0134-01",
  "first_page_order": 132,
  "last_page_order": 135
}