Hefling v. Zandt , 60 Ill. App. 662 ( 1895 )

Mr. Presiding Justice Gary

delivered the opinion op the Oourt.

By a lease dated April 1, 1889, between John S. Woollacott and the appellant, the former demised to the latter the hotel part of a five story building then in process of construction, to hold from November 1,1889, to April 30,1895. The lease contained no express covenant upon the part of Woollacott.

The declaration avers that on the 10th day of January, 1894, Woollacott assigned all his right, title and interest in the lease to the appellee.

Such an assignment gave the, appellee no right of action at law; only an equity. Buxbaum v. Dunham, 51 Ill. App. 240.

Bent to accrue may be assigned by express words. Wineman v. Hughson, 44 Ill. App. 22.

But the sufficiency of the declaration is not questioned, either by motion in arrest below, or assignment of error here, and no advantage to the appellant results from its insufficiency. The cause was put upon the short cause calender—as the appellant says—in violation of the rules of the Circuit Court; but this record does not contain any rules of that court, and we can not take notice of them. Harrigan v. Turner, 53 Ill. App. 292.

The record does not show that the appellant had any meritorious defense. Therefore no cause for postponing the trial was shown; and the offer by the court to postpone upon terms, raises no inquiry as to propriety of such terms.

The landlord not having covenanted to do anything, while it may be that the appellant might have declined to take possession, and have been discharged from his obligation to pay rent if the hotel was not ready for occupancy when the term was to commence—on which matter no opinion is expressed (but see Reno v. Mendenhall, 58 Ill. App. 87), yet, taking possession, he has no valid demand, by action or counter claim, for any deficiencies in the premises. Ratkowski v. Masolowski, 57 Ill. App. 525.

The lease with an assignment by Woollacott, not only of the lease but of all money to become due upon it, was offered in evidence; whether read to the jury the bill of exceptions does not state, though the language rather implies the contrary. That is not enough. Rogers v. Hall, 3 Scam. 6.

The whole case shows a mere struggle to delay or defeat a demand to which there is no defense, by objections to the mode of precedure.

There is one point more which we find it difficult to deal with. The court orally instructed the jury to find the issues for the plaintiff and assess his damages at the sum of §2,166.66. This is more than an instruction as to the form of the verdict justified in Ill. Cent. R. R. v. Wheeler, 50 Ill. App. 205; 149 Ill. 525.

Thus orally instructing was one of the grounds assigned in the motion for a new trial.

But the counsel for the appellee refused to participate in the trial when the court declined to postpone it, and it is not right that the appellant should now have a just judgment reversed because of an inadvertence of the court which in no way injured him.

The judgment is affirmed.

Mu. Justice Shepaed :

I think the oral instruction is reversible error.