Binz v. Tyler , 79 Ill. 248 ( 1875 )

Mr. Justice Scholpield

delivered the opinion of the Court:

It is objected that the declaration treats the instrument by which defendant’s liability is charged, as an original undertaking, whereas it is collateral, and should have been so de-clarea on. It is stated, as matter of conclusion of the pleader, that the defendant, by the writing previously set forth in hcec verba, “bound himself to pay the rent, and fulfill and perform all and every of the covenants therein in said lease contained,” etc. But the instrument itself being before the court, its legal effect was to be determined by the court, and that determination could not be influenced by the subsequent allegation of the pleader as to its legal effect. This allegation was, therefore, surplusage only, which did not affect the preceding material allegations in the count.

It is also objected that the action was prematurely brought; that appellees could not sustain an action for the rent until the expiration of the lease, which, the declaration shows, had not occurred when the action was commenced.

This has no support in anything in the declaration. The lease therein described requires the payment of rent, at the rate of $2000 yearly, on the first day of each and every month, in equal portions and installments, and we are aware of no principle which will prevent a recovery for any installment remaining unpaid after it is due. To hold there could be no recovery for rent until the expiration of the term, would require us to make a new contract for the parties, entirely different from the one they have made for themselves. The guaranty is as broad in its terms as is the lease. The words, “the prompt fulfillment of all the provisions, conditions and agreements therein mentioned,” we think, should be held to embrace, as they literally import, every obligation imposed by the lease on the lessee. Apart from this, however, the undertaking that full payments shall be made “of the sum or sums of money specified in the within lease,” can, in our opinion, be reasonably construed in no other way than that payments shall be made as the sum or sums shall become due, as provided by the terms of the lease.

When it is said, payment shall be made of a debt, in the absence of any expression to the contrary, the reasonable and, indeed, necessary implication is, that this shall be when the debt is due.

The remaining objection urged, that the verdict was contrary to the evidence, can not be considered. The judgment was on the demurrer, for default of plea. The defendant, by permitting judgment thus to be given, was so far out of court that he was entitled to cross-examine witnesses for the purpose of reducing the damages, only, and it was not admissible for him to make a defense to the action. The demurrer admitted every material allegation in the declaration, and nothing was left to be inquired into but the amount of damages sustained by the plaintiff. Morton v. Bailey et al. 1 Scam. 213; Cook v. Skelton, 20 Ill. 107.

The judgment is affirmed.

Judgment affirmed.