Leavitt v. Stern , 1894 Ill. App. LEXIS 440 ( 1894 )

Mr. Justice Shepard

delivered the opinioh of the Court.

The appellant was the lessee and in possession of a certain theater building and was sued by the owner, the appellee, for rent.

The lease under which appellant took possession was for a term of years, beginning September 1, 1890, and expiring August 31, 1894.

The judgment that was recovered represented the unpaid rent prior to and including the month of February, 1894, under the terms of that lease.

The defense was, in substance, that the appellant, being in possession of the theater, entered into an oral contract with the appellee on July 1, 1893, for a new lease upon different terms for a term of six years, of which the unexpired term of the then existing lease should comprise a part; that the old lease was canceled or merged into the new one, under which the appellant was thereafter to hold, and that in pursuance of that agreement appellant made repairs and incurred expenses for which he should be allowed, but which was refused by appellee. Ho new lease in writing was ever executed and the old lease was never canceled, unless by parol, and the statute of frauds was interposed against the defense of the appellant.

In their brief, counsel for appellant state the error of which they complain, as follows :

“ At the close of plaintiff’s case, when the defendant offered proof of the facts with reference to expenses incurred by him under an oral agreement with plaintiff, and also proof of facts tending to show a surrender of the old lease made by defendant and accepted by plaintiff, the learned trial court refused to admit the proffered evidence, and peremptorily directed a verdict for the plaintiff. For this error, as we maintain it was, this appeal is prosecuted.”

The original lease, which was still in force and had more than a year to run when the alleged oral contract was made, was under seal, and it is well settled law that it is not competent, either at common law or under the laws of this State, to modify or change a sealed instrument by proof of a subsequent parol contract. B. & O. R. R. Co. v. I. C. R. R. Co., 137 Ill. 9; Moses v. Loomis (No. 5254, this term), filed Nov. 12, 1894; Lewis v. Fish, 40 Ill. App. 372.

The Circuit Court justly refused to admit the offered evidence of the parol contract, and the judgment will be affirmed.