{
  "id": 5269329,
  "name": "Gertrude S. Walker v. Jacob L. Kesner et al.",
  "name_abbreviation": "Walker v. Kesner",
  "decision_date": "1899-12-14",
  "docket_number": "",
  "first_page": "244",
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      "cite": "86 Ill. App. 244"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "analysis": {
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  "last_updated": "2023-07-14T16:28:30.258939+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Gertrude S. Walker v. Jacob L. Kesner et al."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Sears\ndelivered the opinion of the court.\nWithout discussing appellant\u2019s possible right of recovery against appellees in another form of action upon the facts disclosed by the declaration, it is enough to say that it appears from the declaration, and from each count thereof, that appellees did not enter into any covenant whatever with appellant, and hence that the declaration in covenant was bad. Here the defendant has not engaged by deed to perform the covenants, and consequently covenant will not lie. Butnett v. Lynch, 5 Barn. & C. 589; Moore v. House, 64 Ill. 162; R. R. I. & St. L. R. R. v. Beckemeier, 72 Ill. 267; Hancock v. Yunker, 83 Ill. 208; Neufeld v. Beidler, 37 Ill. App. 34; McCormick v. Seeberger, 73 Ill. App. 87, Seeberger v. McCormick, 178 Ill. 404; Murphy v. Kohlsaat, 68 Ill. App. 579.\nThe learned trial judge properly sustained the demurrers.\nThe tendency of the courts may be toward a greater liberality in matters of pleading in order that substantial justice may be speedily done, but our courts have not as yet so far departed from common law rules of pleading as to permit a recovery in covenant under a declaration which sets up a breach of implied warranty or a tort.\nOur statute of amendments is broad and liberal and is liberally interpreted. There was nothing to prevent a curing of the error in pleading after the demurrers had been sustained.\nThe judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Sears"
      }
    ],
    "attorneys": [
      "Charles F. Davies and John B. Brady, attorneys for appellant.",
      "Felsenthal, D\u2019Ancona & Foreman, attorneys for Jacob L. Kesner and Siegfried H. Kirchberger, appellees.",
      "Julian W. Mack, attorney for Modie J. Spiegel, Milton A. Strauss and Albert L. Strauss, appellees.",
      "A. Binswanger and Elmer E. Jackson, attorneys for Oscar G. Foreman, Benjamin Hillman, Sidney Lowenstein, et al., appellees."
    ],
    "corrections": "",
    "head_matter": "Gertrude S. Walker v. Jacob L. Kesner et al.\n1. Pleading\u2014In Covenant.\u2014A declaration in covenant which fails to allege that the defendant entered into a covenant is bad.\n2. Same\u2014Liability in.\u2014The tendency of our courts is toward a greater liberality in matters of pleading, in order that substantial justice may be speedily done; but they have not as yet so far departed from the common law rules of pleading as to permit a recovery in covenant under a declaration which sets up a breach of implied warranty or a tort.\n3. Covenant\u2014Where the Action Will Not Lie\u2014Where a person has not engaged by deed to perform a covenant, the action will not lie against him.\nCovenant.\u2014Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the March term, 1899.\nAffirmed.\nOpinion filed December 14, 1899.\nStatement.\u2014Appellant, as lessor, demised premises to \u201c The Boulevard Phoenix Club \u201d as lessee, by a written lease. The lease was signed as follows, after the signature of the lessor : \u201c The Boulevard Phoenix Club, by Milton A. Strauss, Pres.; Arthur Stein, Secretary. For rent due upon this lease, appellant brought this suit against Milton A. Strauss, Arthur Stein and fifteen others as co-defendants in an action of covenant. Each count of the declaration alleged that these defendants, \u201c pretending to be directors, officers and agents of '\u00a3 The Boulevard Club,\u2019 did assume to exercise corporate powers and to use the name of a pretended corporation without having theretofore1 complied with an act of the State of Illinois entitled, \u00a3 An Act Concerning Corporations,\u2019 being part of Chapter 32, \u00a1Revised Statutes of the State of Illinois, which prescribes and regulates the manner and means in and by which corporations may be lawfully organized and authorized to do business;\u201d each count sets out a failure to file in the office of the recorder of deeds of Cook county, in which county was located the principal place of business of said pretended corporation, a certificate from the Secretary of State of the State of Illinois, of the complete organization of such corporation; each count alleges that \u201c so assuming and pretending as aforesaid, the defendants did lease by indenture of lease from the plaintiff,\u201d etc.; and each count makes the written lease a part of the count. The defendants interposed demurrers to each count of the declaration. The trial judge sustained the demurrers as to each count, and, appellant electing to stand by her declaration, a judgment was entered against her for the costs, from which judgment this appeal is prosecuted.\nCharles F. Davies and John B. Brady, attorneys for appellant.\nFelsenthal, D\u2019Ancona & Foreman, attorneys for Jacob L. Kesner and Siegfried H. Kirchberger, appellees.\nJulian W. Mack, attorney for Modie J. Spiegel, Milton A. Strauss and Albert L. Strauss, appellees.\nA. Binswanger and Elmer E. Jackson, attorneys for Oscar G. Foreman, Benjamin Hillman, Sidney Lowenstein, et al., appellees."
  },
  "file_name": "0244-01",
  "first_page_order": 252,
  "last_page_order": 254
}