Heissler v. Stose , 1888 Ill. App. LEXIS 446 ( 1889 )

Garrett, P. J.

The damages allowed by the jury represented interest on each installment of rent, and the only question is whether interest was recoverable. Appellant contends that there was no money due on a written instrument, and therefore Sec. 2, Ch. 74, Rev. Stat., does not warrant the recovery. There can be no doubt that there was money due when the action was commenced, otherwise the suit would be premature. And since the decision in Stose v. Heissler, 120 Ill. 433, it must be admitted that some amount of money, as rent, was due each month in advance. The lease in question was there construed, and the court held it to be evident that both parties contemplated the payment of rent monthly in advance, during the entire term.

If the rent was due merely by reason of appellants’ occupancy and the implied undertaking arising therefrom, there is no known rule of law which would make the value of the use and occupation due each month in advance. We perceive no reason why, in the absence of any agreement, a suit might not be brought each day for the preceding day’s use, but it is certain that no suit could be maintained for future use and occupation unless there was an agreement to that effect. There is, then, no escaping the conclusion that there was money due each month in advance, and that it was due on and by virtue of a written instrument. That the amount was uncertain is no defense to the claim for interest. Appellants knew when they executed the instrument that, in a certain contingency, the amount-of ■ their monthly liability would become uncertain, and they should have provided against the possibility of having to pay interest on a demand, uncertain as to its amount. To say that they did not foresee the happening of the event is no better defense than to say they did not know the law. The judgment is affirmed.

Judgment affirmed.

Gajíy, J., took no part in this case.