United States Brewing Co. v. Wolf , 1913 Ill. App. LEXIS 301 ( 1913 )

Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a forcible detainer suit in the Municipal Court of Chicago against the defendant, here the plaintiff in error, to recover possession of certain premises in Chicago known and described as No. 1500 West Polk street. On a trial by the court the defendant was found guilty of unlawfully withholding from the plaintiff the possession of the said premises and that the right of possession thereof was in the plaintiff, and judgment in the usual form in that court was entered thereon.

The defendant submitted to the trial court certain propositions of law, with the request that the court pass upon and mark the same as provided by statute. The court refused to so do and this action of the court is assigned for error and insisted upon in the argument of the defendant for the reversal of the judgment. The propositions of law submitted to the court should have been passed on and it was clearly error to refuse so to do.

Under the date of February 16, 1910, Oscar Schreiber, the owner of the said premises, leased the same to the plaintiff, who then had and continued in possession thereof, through the defendant, for the term beginning May 1,1910, and ending April 30,1911. The said lease contained the following provision:

“Said lessor herein gives and grants to the said lessee the option for an additional term at the expiration hereof, of One (1) year, upon the same terms and conditions, and at the same rent as herein expressed, provided that the said lessee shall give notice of its acceptance of said option prior to the termination of this demise.”

On February 1, 1911, the plaintiff notified the said Schreiber that it exercised its said option to lease the said premises for the additional term of one year, and also stated therein, “and we hereby further notify you that the said United States Brewing Company of Chicago is now ready, willing and able to enter into and execute a lease, under the same terms and conditions as that now in force for a period of one (1) year from April 30th, 1911.”

On February 7, 1911, the plaintiff sublet said premises to the defendant, who was then in possession of the premises, for the term beginning May 1, 1911, and ending April 29, 1912. On May 17, 1911, the plaintiff served a five day notice on the defendant and, the defendant not paying the rent on May 24, 1911, began said forcible detainer suit.

After the plaintiff’s notice of exercising its option under the lease was received by the said Schreiber, he called upon the plaintiff to execute a new lease upon the same terms and conditions of the said lease, except the clause giving an option for an additional term. The plaintiff insisted upon the clause giving an option for an additional term, and declined to execute the lease unless it contained the same option for an additional term. The said Schreiber, on two different occasions, after the receipt of the said notice, offered to execute a new lease, the same as the lease in force, with the exception of the option privilege, and the plaintiff refused to make a lease that did not include the same option privilege. Schreiber then leased the said premises to the defendant, whó remained in possession thereof, claiming to hold same under the Schreiber lease, and attorned to the said Schreiber.

That the plaintiff was not. entitled, under the optional clause of its lease with Schreiber, to a new lease including the optional clause, thereby making the lease perpetual, is too well settled to require the citation of authorities.

The difficult question in this case is the construction of the said optional clause. What is its meaning? That on the giving of the notice therein specified, the term would thereby be extended one year, or that the said Schreiber, on receiving the said notice, bound himself to enter into a new lease with plaintiff for one year at the same terms, except the optional clause? We have made a careful examination of the authorities and find no case, and none has been called to our attention by the parties, with an option clause framed in language similar to that in the case at bar. The test must necessarily be the meaning of the parties, and being in doubt from the reading of the language itself, we resort to the construction thereof by the parties. From the evidence it seems that the construction by both the plaintiff and Schreiber was that a new lease should be executed. The plaintiff’s argument that the notice in regard to a new lease was surplusage can not avail it on the question of showing the construction put upon the option clause by the defendant. It clearly shows the plaintiff’s construction of the said provision. If a new lease was required and the plaintiff refused to execute the same, it follows that it was not entitled to the possession of the said premises subsequent to April '30, 1911, and the judgment was therefore erroneous.

If the judgment were reversed without remanding, a certificate of importance and appeal allowed the plaintiff would be of no avail, because of the failure of the court, trying the case without a jury, to pass on the propositions of law which are necessary for a review of the case in the Supreme Court. Mann v. Learned, 195 Ill. 502. The case well illustrates the seriousness of the error of the trial court’s refusal to pass on the propositions of law presented.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Upon consideration of a petition by defendant in error for a rehearing herein the following additional opinion was filed on July 14,1913.