Goldsbrough v. Gable , 49 Ill. App. 554 ( 1893 )

Opinion oe the Court,

Cartwright, J.

This is the same case that was before this court on a former appeal. Goldsbrough v. Gable, 36 Ill. App. 363.

On appeal from this court to the Supreme Court, the judgment of this court and the Circuit Court were reversed, and the cause was remanded to the Circuit Court for a new trial. Goldsbrough v. Gable, 140 Ill. 269. The Supreme Court held that the Circuit Court erred in admitting evidence of an agreement for the reduction of rent, and in refusing to instruct the jury that such agreement, if made, was invalid and could not be enforced. This holding was based upon the facts shown by the evidence in the record, that appellee had remained in possession after the expiration of the written lease without any new contract with appellant in respect to such continued possession, and that appellant had accepted the payment of rent for one month thereafter at the old rate, whereby appellee became tenant of the premises from year to yean subjest to the same rent as was provided to be paid in the original lease. The agreement of appellant to accept a less sum, by which appellee was not required to do anything which he was not already bound to do, was therefore held.to be without consideration.

The case has been again tried, resulting in a verdict and judgment for appellee.

On the last trial the evidence on the part of the defendant concerning his continued possession, after the expiration of the first lease, and the agreement for a reduction of rent, tended to prove, and in our opinion justified the jury in finding the following facts: In the latter part of February, 1884, before the expiration of the lease under -which defendant ivas holding, which was in writing and under seal, and would expire March 18,1884, the plaintiff was informed by defendant that he would not occupy the premises after the expiration of such lease at the same rental, and that, unless the rent was reduced, he should go out, and plaintiff could have the building. Defendant vas then paying rent for the building at the rate of 870 per month, as provided in the written lease, and told plaintiff that he ought to have it for $40 per month. Plaintiff refused to reduce the rent for a new term to $40, and said that he ought to have $60. 'JSTo amount was then agreed upon, but the plaintiff said that defendant should stay in the premises, and that he would reduce the rent. Defendant remained in possession, and at different times sought for an agreement as to the amount of rent, but the agreement was not concluded and the amount fixed until July 9, 1884, when defendant offered to pay $50 per month, and to pay it semi-monthly instead of monthly, as he had been doing, and the proposition was accepted by plaintiff, conditioned on such rent becoming due semi-monthly. Defendant had paid rent to May 18, 1884, at the old rate, but after the agreement was concluded he paid, and plaintiff accepted, rent at the rate of $50 per month for more than four years during defendant’s occupancy of the premises, to October 18, 1888. Defendant paid the whole rent at the rate of §50 per month by his checks and in repairs made at plaintiff’s request.

The controversy now is whether, upon these facts, the defendant became a tenant of the premises under plaintiff from year to year, upon the same terms and subject to the same rent, as provided in the original lease.

When a tenant remains in the possession of premises after the expiration of his term, the law presumes, in the absence of anything to show the contrary, that he is satisfied with the terms of the lease under which he has been holding, and intends to create a tenancy for the future upon, the same conditions. So, when the landlord accepts rent at the old rate, a like presumption arises as to him. The presumption as to the tenant can not be rebutted by proof of a contrary intention on his part alone, and if the landlord has not assented to different terms, he has a right to insist upon the presumption, and exercise his election accordingly. But we do not understand that the presumption is one that a court is compelled to draw from the fact of holding over, if the evidence shows that the intention presumed did not in fact exist on the part of either landlord or tenant, or if they have agreed differently, the presumption will not prevail against their joint intention. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151.

In this case, when the promise was made by plaintiff to reduce the rent in case defendant would remain in possession, the written lease had not expired. It would expire March 18, 1881, and defendant had a legal right to leave the premises at that time. The fact that there was such a lease under which defendant was holding, could not at that time affect the right to create a new tenancy on different terms after its expiration. A verbal agreement for such a tenancy on any terms which the parties, might agree upon, if executed, would be valid and binding. An agreement of defendant to remain and pay rent would be a good consideration, and it would not be necessary for him to formally vacate the premises and re-enter under the new lease. The law requires no such, useless ceremony. Dills v. Stobie, 81 Ill. 202.

The fact that defendant refused to remain upon the same terms as to the amount of rent provided in the original lease, rebutted the implication of intention on his part to enter upon a new tenancy on those terms, which he expressly refused to be bound by. The fact that the plaintiff agreed that if the defendant would stay it should be at a reduced rent, below the rate fixed by the existing lease, proved that he did not intend to create a tenancy at the same rent provided in such lease. It is urged that the agreement to reduce rent could not rebut the legal presumption, because the amount of such reduction was not agreed upon before the expiration of the original lease, but we can not see that the amount of the reduction was of any consequence on the question whether the intention was that it should be the same. Plaintiff expressed a willingness to reduce it $10 per month, and if it was reduced that much, or reduced at all, it would not be the same. If it was not to be the same, it does not seem material on that question how much less it was to be. The joint understanding and intention was that it should be less, and in our judgment the legal presumption that it should be the same was thereby met and overcome.

Defendant entered upon the new tenancy in pursuance of the agreement for a reduction of rent, and we do not think that the payment and acceptance of rent for a short period at the old rate, while the negotiations were pending, would abrogate the agreement, and restore the terms of the expired lease, or be conclusive of an intention to continue payment at that rate. Efforts were being made to have the amount of the reduction agreed upon, and they had not failed or ceased. The agreement to reduce the rent was upon a good consideration, and defendant was insisting on the performance of it. When the amount to be paid was finally settled, it was upon the further consideration that it should be paid semi-monthly, which was done. We think the agreement was not void for want of consideration.

What has been said disposes of the questions raised on instructions. The judgment will be affirmed.