Moses v. Loomis

Mr. Justice Gary

delivebed the opimioh of the Coubt.

It is probable that D. J. Loomis and E. W. Stevens were tenants of two stores under the appellant, and had sublet a part of the premises to E. S. Hopkins.

The appellant sued the three in forcible detainer, his complaint being that Loomis and Stevens had cut away some joists, which act gave him the right to re-enter.

Upon such a case there can be no claim that Hopkins is liable in this action, as it is not pretended that any notice to quit was given to him. Sub-tenants can not be put out by proceedings against the original tenant only. Leindecker v. Waldron, 52 Ill. 283.

Indeed, the appellant only urges that it was error to orally instruct the jury to find in favor of Hopkins; if it was, it was error without prejudice, and no cause for reversing the judgment. Chi. Pub. Stock Exch. v. McCloughry, 148 Ill. 342. But the record indicates that the appellant excepted to the matter, not the manner, of the instruction.

As to Loomis and Stevens the court instructed the jury:

“ If you believe from the evidence that the plaintiff, Moses, verbally authorized the defendants, Stevens and Loomis, to make the change, if any, which you may believe from the evidence were made in the building, this was a waiver by Moses of the provisions in the lease that no alteration should be made without the written consent of Moses, as that provision was inserted in the lease for the benefit of Moses and he had the right to waive it.”

If there was a lease under seal, that instruction was wrong, as nothing by parol would modify the lease. B. & O. R. R. v. Ill. Cent. R. R., 137 Ill. 9.

But if not under seal, then it could be changed by subsequent parol agreement. Bishop v. Busse, 69 Ill. 403.

Row on this record we can not see any document which, was in evidence below. The language of the bill of exceptions as to such documents is : “ Said lease was admitted in evidence and marked exhibit A.” “Said notice was marked exhibit B.” Similar language is used as to some exhibits put in by Hopkins.

In the bill are documents .marked exhibits A and B, and they are near to the words referring to exhibits as A and B, but there is no statement that these are the same; no words of identification. Imperial Hotel v. Claflin, No. 5233, citing Spangenberg v. Charles, 44 Ill. App. 526, Charles v. Remick, 50 Ill. App. 534, and other cases not yet reported.

The judgment must be affirmed.