Morrill v. Baggott , 57 Ill. App. 530 ( 1895 )

Me. Justice Gaey

delivered the opinion of the Court.

The appellant is sued as guarantor of the payment of rent to accrue, under a lease from the appellee to Bobert F. Bertie and Otto Bichter.

Many pleas were filed by the appellant, all of which were held bad on demurrer and judgment entered for the appellee. The counsel of the appellant say in their brief that it is to the fifth plea “ we desire to direct the special attention of the court,” and their argument is almost wholly confined to that plea. We will only consider that plea, as it is clear that the defense relied upon, is the matter there stated. In effect that plea is that before the lessees entered, and when no rent was due, the appellee and the lessees, without the consent of the appellant, agreed in writing that the lessees should make certain repairs for $700, which should be credited on, in lieu of payment of, so much of the rent to accrue; and that the lessees performed.

The declaration is that the demise was by “ indenture.” As we have somewhere said, this word implies a seal, for which we cited 1 Ch. Pl. 313, Ed. 1828. And as we have somewhere also said, all contracts not of record, nor under seal, are of one dignity. “ If they be merely written, and not specialties, they are parol; and they have the same efficacy, properties, and effect.” 1 Ch. Cont. 5.

The appellant therefore attempts to change a contract between the landlord and tenant which was under seal by an agreement between them which was not under seal; a thing which the Supreme Court in Chapman v. McGrew, 20 Ill. 101, decided should not be done even in behalf of a surety. That case has been followed very often. Sauber v. Collins, 40 Ill. App. 426.

As the plea does not state that the agreement relied upon was under seal it is to be presumed that it was not. Mager v. Hutchinson, 2 Gilm. 266.

And as the declaration states that the lease was by “ indenture,” which the plea does not deny, it is admitted. Williams v. Boyden, 33 Ill. App. 477.

There is a plea that the lessees at the request of the appellee performed labor and furnished material “ at an agreed price of §700, which * * * was accepted by plaintiff in payment of all” alleged in the declaration, which was §2,041.69. An acceptance of less than is due upon an undisputed demand is no satisfaction. Martin v. White, 40 Ill. App. 281.

Mo dispute as to the amount due is stated in the plea.

There is no error, and the judgment is affirmed.