Corning Steel Co. v. Western Union Telegraph Co. , 60 Ill. App. 426 ( 1895 )

Mb. Pbesiding Justice Gaby

delivebed the opinion of THE CoUET.

, The Phenix Insurance Company of Brooklyn, N. Y., being probably the owner of the Phenix building, in Chicago, intended to demise to the plaintiff in error, three rooms therein, and as a mode of so doing kept in its own possession a document, purporting to be a certificate that it had so demised, which certificate contained the terms of such supposed demise, and ended (being a printed blank) with a statement that the insurance company had “ affixed its corporate seal and caused these presents to be signed by its general agent ” on a date therein named.

No corporate seal or signature was affixed, so that in fact there was no such demise as was stated in the certificate. On the other side of the same sheet was a certificate by the defendant in error under seal containing the usual covenants by leases.

Now this suit is by the assignee of the reversion—the grantee in fee of the insurance company. To enable an assignee to sue upon a covenant, it must be one that runs with the land, which can not be, unless there “ be a privity of estate between the covenanting parties.” Keegan v. O’Callaghan, 35 Ill. App. 142.

When the certificate of the plaintiff in error was executed it had no estate in the intended-to-be demised premises. If it ever obtained any estate, it was such as was implied by law from subsequent occupation and payment of rent. It would seem to be clear that the defendant in error can not maintain an'action of covenant. It is, however, not necessary to decide that question.

The declaration alleges that the Phenix Insurance Company, “ by a certain indenture then and there made between the said Phenix Insurance Company of the one part” * * “ did demise ” -x" * * “ and the said Corning Steel Company did thereby for itself covenant,” etc.

The plaintiff in error pleaded—inter alia—non estfactmn. Under that plea a variance between the declaration and the instruments produced was fatal. 1 Ch. PL (Ed. 1844), 483.

When the certificates were offered in evidence, the defendant in error objected on the ground of variance, but the objection was overruled and the defendant in error excepted.

There was a variance. Ho indenture, in either acceptation of the word—as an instrument between two or more, or as an instrument under seal, whereby the insurance company demised, and the “ steel company did thereby for itself covenant ”—was produced.

The certificate should have been rejected. We need not consider other questions.

The judgment is reversed and the cause remanded.