Slack v. Knox , 213 Ill. 190 ( 1904 )

Mr. Justice Scott

delivered the opinion of the court:

Appellee urges that she has the right to have the demised premises, with all their appurtenances and beneficial rights, maintained, throughout the term of the lease, in the same condition they were in during the former occupancy and at the time of the execution of the new lease, and contends that the right to have the steam pipe connect the steam boiler in the basement of the building with the hot water tank and steam tables on the premises leased by her, and to have steam supplied through that pipe, passed to her, by implication, as an appurtenance or easement under the second lease, for the reason that, in view of the facts stated in the bill, it is apparent that it was the intention of the parties to the lease, at the time of the execution of the second lease, that the appellee was to have the steam pipe and connections continued in the same condition and situation in which they then were, during the term of that lease.

At the time of the execution of the first lease, the pipe was not in position and no connection existed between the water tank and steam tables owned by the appellee and the boiler in the basement of the building. The tank and the tables were placed on the premises after the execution of the first lease, and the connection with the boiler was made at the instance of the appellee under an oral contract, separate and distinct from the lease, as we think.

Appellee urges that this is not a correct view of the matter, and that the pipe was installed and the connections made by appellant’s leave without any consideration therefor passing to him and without any new contract, and that it is therefore to be regarded as though done in the first instance under the terms of the first lease. Her contention in this regard is inconsistent with the following language found in the bill, to-wit: “That while said lease provided that the defendant should supply the complainant with steam heat from the first day of September to the thirtieth day of April in each year, said lease contained no provision specifically relating to said connection between said steam boiler and complainant’s said apparatus and defendant thereupon requested complainant in consideration of said connection with said steam boiler to clean and keep clean the hallways and stairs from the second floor of said building to the front doorway or public entrance thereto at her own expense, which said complainant consented to and thereafter did.” It is apparent that the right to the use of this connection with the boiler and to the steam thereby conveyed did not pass by implication under the first lease, for the reason that at the time that lease was executed, the pipe was not in position nor were the tank and tables, in connection with which it was afterwards used,, on the premises at all, so that there was nothing in the condition of the property, which was the subject of the contract, to indicate that it was the intention of the parties that appellee was to have the use of the pipe and steam thereby conveyed under the terms of that lease; and construing the language quoted above from the bill, as it must be construed, most strongly against the pleader, we think it shows that the connection between the boiler and the tank and steam tables was made pursuant to a contract by which appellant was to permit that connection and furnish steam, and appellee was to clean the hallways and stairs from the second floor of the building to the entrance thereof.

It is elementary that this oral contract did not alter or vary the terms of the original lease, which was under seal and made prior to the time the oral agreement was made. (Baltimore and Ohio and Chicago Railroad Co. v. Illinois Central Railroad Co. 137 Ill. 9, and cases there cited.) Consequently, at the time of the execution of the second lease, the appellee was enjoying the use of the pipe and the steam thereby conveyed, not under the terms of the original lease nor as an appurtenance or easement connected with the property granted, but under the oral agreement made subsequent to the lease last mentioned, and inasmuch as the second lease is also silent as to this pipe and the steam by it supplied, we do not think it can be said that the use of that pipe and the steam necessary for the steam tables and tank passed to appellee by implication or on the theory that it was the intention of the parties that such use should be included in the lease, as an appurtenance or easement.

After the beginning of the term covered by the second lease and down to the time that this difficulty arose between the parties hereto, appellee continued, at her own expense, to keep the hallways and stairs clean in accordance with the terms of the oral agreement. If it was the intention of the parties that the right to the use of the pipe and the steam should pass by the second lease, how can these acts of the appellee be explained? Manifestly no duty was imposed on her by the second lease to clean the hallways and stairs. Had she failed'to do that work, an action of covenant on the lease certainly could not have been brought against her to recover upon a cause of action resulting from her default in that respect. The conclusion is irresistible that she incurred that expense because she believed that she was thereby compensating appellant for the use of the pipe and the steam which it supplied; and if she was so doing, then she was accepting and receiving the steam under the oral agreement and not under- the lease.

It is permissible, in construing a contract, to look to the interpretation that the parties thereto have placed thereon, in its performance, for assistance in ascertaining its true meaning. “No extrinsic aid can be more valuable.” Vermont Street M. E. Church v. Brose, 104 Ill. 206; Storey v. Storey, 125 id. 608.

Appellee relies particularly upon the case of Thomas v. Wiggers, 41 Ill. 470. In that case it appeared that a tenant under an earlier lease had used the exhaust steam from an engine which was conducted by means of a pipe from the engine to a steamer used by the tenant, and that this steam was essential to the conduct of his business. This court held that under the terms of his second lease, which provided as the first had done that he should have a certain portion of the building together, with one-half of the steam power produced by the steam engine located therein, he was entitled to the use of the exhaust steam as he had previously used it and was using it at the time the second lease was made. This is put upon the ground that in the construction of grants, the courts ought to take into consideration the circumstances attendant upon the transaction, the particular situation of the parties and the state of the thing granted, for-the purpose of ascertaining the intent of the parties, and that the defendant well knew when he signed the second leáse that the plaintiff understood that he was acquiring the right to use the exhaust steam in the p'recise manner in which he was then using it under the first lease. That case is distinguished from the one at bar by the fact that here appellee was enjoying the right now in controversy under a contract separate and distinct from the first lease, and was phying for the enjoyment of that right a valuable consideration in addition to the rent reserved by the lease. Under such circumstances, it cannot be said that it was the intention of the parties that this right should be included in the new lease. In the Thomas case, at the time of the execution of the new lease, there was no contract except the old lease under which the right could have-been enjoyed. In this case, the right was being enjoyed under a separate contract, and the presumption which arose in the Thomas case that the parties intended that the right should be enjoyed under the second lease, does not arise here. On the contrary, following the reasoning in that case, we arrive at the conclusion that the parties intended that the right in question should be regulated by the same contract Under which it existed at the time of the execution of the second lease, viz., the oral contract.

As the oral contract fixed no term during which it should continue in force, either party thereto had a right to terminate it upon reasonable notice to the other.

The judgment of the Appellate Court and the decree of the superior court will be reversed, and the cause will be remanded to the latter court with directions to' sustain the demurrer to the bill.

Reversed and remanded, with directions.