J. B. Sanborn Co. v. Marquette Building Co.

Mr. Presiding Justice Sears

delivered the opinion of the court.

This suit was brought in an action on the case. The fourth ground urged for granting a new trial below, and the fourth assignment of error here, present the same objection, viz., that the court erred in directing a verdict for defendants, appellees Charles and Jeannette Schonlau. We are of opinion that the contention of appellant in this regard must be sustained.

The question of whether the interferences with the possession of appellant amounted to an eviction, is not necessarily here involved. The directing of a verdict for appellees raises the broader question of whether there has been such an interference as would constitute ground of action against any of the appellees, whether it amounted to an eviction or not. The action, so far as it can be sustained, is not based upon any breach of covenants of the lease, or upon any contractual ground whatever, but upon an unwarranted interference with the possession of appellant. Inasmuch as the evidence fails to disclose any act upon the part of the Central Chicago Building Company, the Marquette Building Company, or Owen F. Aldis, which could be construed as an interference with the possession of appellant, and as no action upon contractual obligation is here involved, the ruling pf the court, in directing a verdict of not guilty as to these appellees, was proper. But while the court was warranted in thus directing a verdict for the three appellees named, it was error to direct a like verdict for appellees Charles and Jeannette Schonlau, for the evidence shows that they did cause the acts to be done by which the appellant claims to have been injured. Mor does the right to a recovery depend alone upon the right of the Schonlaus to make alterations in the building or to change it in part into a hotel. Although the contract of leasing, to which the Schonlaus became party, imposed no limitation upon the lessors by which they were precluded from using a part of the premises for a hotel, and making such changes as were incident thereto and necessary, yet a recovery might be had for any wrongful invasion or interference with appellant’s rights in the premises, done in the course of reconstruction of the building. That an action will lie for such unwarranted interference with the possession and enjoyment of a leasehold is well settled. Chapman v. Kirby, 49 Ill. 211; Glickauf v. Maurer, 75 Ill. 289.

The trial court should have submitted to the jury the question of injury to appellant through such acts, if any, of appellees Schonlau.

It is urged by appellant that there is as well a right of recovery against the other appellees. This contention is not tenable. There is no evidence to show that the work of reconstruction was participated in, or the method of accomplishing it authorized, affirmed or ratified by any of the other appellees.

The permission given to the Schonlaus, by the contract of the Marquette Building Company, to alter the building into a hotel, was made expressly subject to the thirty-five leases of tenants, including appellant. There is no evidence to show that this company or Aldis ever approved in writing of the plans of reconstruction, or had any knowledge or notice of the acts by which the reconstruction was accomplished.

We do not regard the cases cited by counsel for appellant in this behalf as being in point. They are decisions in cases where it was either sought to defend in actions for rent or to recover damages for breach of a covenant of the lease; in each case the defense or the action being based upon the contract.

The language of this court in Mendel v. Fink, 8 Ill. App. 378, Mr. Presiding Justice McAllister speaking, is applicable to the case under consideration:

“A liability upon contract, express or implied, being excluded from the consideration of the case, then the question arises, what circumstances should be shown in order to fix the landlord with responsibility for the damages in question ? * * * If, however, they (the premises) were not under his management, or that of his servants, but were under the management of a tenant or tenants, and the latter made negligent use of them, the landlord would not be responsible. The basis of a liability in the absence of a contract must, therefore, be laid in some act of malfeasance on the part of the landlord, or negligence in him or his servants, resulting in the injury.” Greene v. Hague, 10 Ill. App. 598.

We are of the opinion that in directing a verdict of not guilty as to appellees Central Chicago Building Company Marquette Building Company and Owen F. Aldis, the ruling of the trial court was proper, and that in the directing of a like verdict as to appellees Charles Schonlau and Jeannette Schonlau there was error. Therefore the judgment is reversed and the cause remanded. Appellant will recover its costs in this court against appellees Charles Schonlau and Jeannette Schonlau. Reversed and remanded.