Gazzolo v. Chambers , 73 Ill. 75 ( 1874 )

Mr. Justice Scott

delivered the opinion of the Court:

This action was brought in covenant on a lease. The question raised is whether the lessor was .obligated to put the lessees in possession of the demised premises.

The store-room had been occupied by the Mosslers, who held over after their tenancy had expired. Hie principal breach assigned in the declaration is, the lessees had been kept out of possession by the former tenants refusing to surrender the premises. The averment in the third count, that the defendant covenanted the plaintiff should have quiet possession of the premises on the 1st day of May, 1872, is not sustained by the proof. The lease contains no such covenant, nor, indeed, any express covenant for quiet enjoyment. But the latter covenant is always implied in every lease, and is the only one that is implied.

The covenant for quiet enjoyment, whether express or implied, only means that the lessor shall have such title to the premises as will enable him to give a good unincumbered lease for the term demised. It implies no warranty against the acts of strangers. Such a covenant is understood to confer upon the lessee a right to enter upon the premises, but nothing more. Gardner v. Ketellar. 3 Hill, 330; Cozens v. Stevenson, 5 S. & R. 424; Pendergast v. Young, 1 Foster, 238.

The right to recover in this case is based on the ground it was the duty of Gazzolo to put the lessees in the actual possession of the premises. We do not think the lease will bear that construction.

The implied covenant for quiet enjoyment has never, so far as we know, been construed to embrace an obligation on the part of the lessor to place the lessee in possession of the premises. If he is kept out of possession by any act of the landlord, or by one holding a paramount title, no doubt the lessee may have an action. The measure of damages in such eases is the difference between the agreed rental and the actual value of the premises to the lessee. But if the party holding over is a mere wrong-doer, the right of the lessee after the date fixed for the commencement of the tenancy is as effectual to dispossess him as was that of the landlord—indeed, the landlord is not entitled to possession, and can maintain no action to recover the premises. The right- of immediate possession is alone in the lessee, and he must bring the action.. Therefore, when the lessee is prevented from obtaining the enjoyment of the premises by a former tenant, whose tenancy had expired, the law seems to be settled his remedy is against the latter and not against the lessor. This is the rule as stated by the text writers, and is fully sustained by the authorities. Taylor Lan. & Ten. sec. 312; Hatfield v. Fullerton, 24 Ill. 278; Gardner v. Ketellar, and Cozens v. Stevenson, supra.

It is shown, conclusively, the tenancy of the Mosslers had expired on the first day of May, when the term of appellees was to begin. They held over, without any authority from appellant. Appellees made no effort to obtain possession of the demised premises. They did not even demand the possession of the former tenants. The law afforded them a summary remedy against the parties wrongfully holding over, but they did not choose to avail of it. They insisted it was the duty of the lessor to give them possession. He had not contracted to do so, nor was there any implied obligation to that effect resting upon him. The remedy, and the only remedy, was in the hands of the lessees. It was summary and direct, had they chosen to enforce it. Had they been delayed in the undertaking, by appeal or otherwise, the parties withholding the premises, under the statute, would have been liable for such damages as would have afforded complete indemnity. The lessor had no such right. He was powerless to act so long as appellees insisted upon the benefit of the lease.

But, it is alleged, appellant, on the 5th day of June, re-let the premises to the Mosslers for the current year, beginning May 1st, 1872, and ending April 30, 1873, and thereby appellees were kept out of the premises.

It appears, appellant had made several unsuccessful efforts to dispossess the former tenants, but by an artifice, not, perhaps, altogether justifiable, had an arrangement by which he could succeed. He caused appellees to be notified of the arrangement. This was about the third or fourth day of June. In the meantime appellees had procured a lease on another building in the same block, and were carrying on their business as usual. They had been asked whether they would still receive the premises in the event appellant was successful in getting the other parties out, but they declined to say whether they would or not. They were advised appellant did not want to dispossess the former tenants unless appellees would take the store-room, and occupy it under the lease. The season was then far advanced, and it might remain unoccupied for the remainder of the year without yielding an income. It was thought it would be better policy to compromise with the occupying tenants rather than run such a hazard; but appellees would make no reply until the premises should be vacated. This, appellant could well regard as an abandonment of the lease, and a refusal to occupy under it. Appellees had made no efforts, and were making none, to dispossess the former tenants. Appellant was receiving no rent from appellees, and he was not bound to wait longer on them. When they declined to say whether they would accept if he would regain the premises, he had the clear right to treat it as an absolute refusal, and re-let the same to whomsoever would rent them.

The claim set up by appellees is without any merit -whatever. If they were kept out of the premises, it was by no fault of appellant. It must be attributed to their own neglect to employ the summary remedy which the law had placed in their hands, to dispossess the former tenants by an action of forcible detainer.

The judgment is warranted neither by the law nor the evidence, and must be reversed and the cause remanded.

Judgment reversed.