Beach Gravel & Sand Co. v. Simmons , 1895 Ill. App. LEXIS 494 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

The agreement under consideration, called a lease, is much more than a lease. It is not only a letting, but a license to take and carry away sand; in effect, a sale of so much of the sand of the premises as the party of the second part might during the term see fit to remove. This license or sale is the substantial part of the agreement, the only thing which gives to it value.

It is out of this right that the present contention has arisen, and but for such right the agreement would not have been made.

A mere lease is assignable.

We do not deem it necessary to determine whether the right to remove sand given to the party of the second part to this agreement is, under the terms of the agreement, assignable.

The complainant does not allege that by assignment or otherwise it has become so related to the agreement that it has undertaken to carry out and perform to the end of the term the undertakings of the party of the second part thereto. It merely claims to be an assignee of what it styles a lease.

The assignee of a lease, by abandoning the premises and assigning over the lease, may rid himself of all liability for future rent.

The complainant proceeds upon the theory that there has been at law a forfeiture of this lease, which equity will relieve against.

As an assignee of the “ lease ” it asks for such relief, but it does not in its bill offer to step into the shoes of the original-lessee; it retains the advantageous position of being able to rid himself of the lease if it shall prove a burden.

Neither the original lessee nor the party who guaranteed performance by such lessee are parties to this bill.

If the forfeiture should in this proceeding be set aside, and the complainant should abandon the premises and assign over, the lessor "would be left with a contract he has elected to declare at an end, remediless so far as collecting future rent is concerned.

It is manifest that an owner might be willing to make with an ordinary neighbor a contract permitting the removal of sand, which he would not be willing to give to a corporation whose, sole business was the removal and sale of such material. The ordinary neighbor, he might reasonably anticipate, would take but a small quantity, while a beach gravel and sand company might substantially destroy his premises, leaving nothing but a pit.

A court of equity when asked by an assignee- to enforce such a contract will not do that which, under the circumstances, appears inequitable; it will not enforce an unconscionable contract.

What consideration moved the court below we can not tell. Looking at the record, the decree of the Circuit Court is not found to have been without warrant.

The decree of the Circuit Court is affirmed.