Neagle v. Kelly

Waterman, F. J.

By the conditions of the bond FTeagle conditionally undertook to pay all the rent that was due and that might become due, and all damages "which Kelly might sustain by reason of the withholding of the premises in controversy. By means of this bond, Stafford was enabled to retain possession of the premises and to keep Kelly from taking the same; the purpose of FTeagle in giving the bond ivas that this might be done. The title of Kelly to these premises depended upon the fulfillment of the conditions of the ground lease, the payment of the taxes and rent therein provided to be paid. Stafford’s interest required that these should be paid, not only because he had agreed to pay them, but because Ms opportunity to purchase the building depended upon the maintenance of the title held by Kelly.

Stafford having agreed to pay the taxes and ground rent, it is immaterial that he was not to pay these to Kelly. A payment to whomever they were due would have inured to Kelly’s benefit as much as if paid to him and would have been a fulfillment of the agreement. The rent reserved by the ground lease was the taxes and the sum of $43.Y5 a month; it was for non-payment of this rent that the judgment in the action of forcible detainer ivas rendered, and this is the rent mentioned in the condition of the bond.

The statute of frauds set up for the first tune in this court has no application to the facts of this case. Stafford’s agreement was not collateral to any agreement by Kelly to pay this rent. Stafford, as a part of the original transaction, for a consideration and benefit moving to him, agreed to pay this rent and thereby obtained possession of these premises. A promise made under such circumstances is not within the statute of frauds. Wilson v. Bevans, 58 Ill. 232; Meyer v. Hartman, 72 Ill. 442; Clifford v. Luhring, 69 Ill. 401; Borchsenius v. Canutson, 100 Ill. 82; Graham v. Mason, 17 Ill. App. 399; Emerson v. Slater, 22 How. 43; Curtis v. Brown, 5 Cush. 491. The judgment of the Circuit Court is affirmed.

Judgment affirmed.