Cusack v. Gunning System

Mr. Justice Adams

delivered the opinion of the court.

The contentions of appellant’s counsel are that appellee’s rights under the contract between it and Winston & Co. expired at twelve o’clock midnight, October 6, 1901; that the contract was a mere license, revocable at any time, notwithstanding there was a valuable consideration for it; that it -was revoked October 1, 1901, at which date Winston & Co. gave appellant a receipt for $25 for rent of the wall for one year, to commence after the expiration of any existing lease, and that, if not revoked at the last date, it was certainly revoked October 7, 1901, when Winston & Co., on request of appellee and tender of $10, refused to renew it.

Counsel for appellant devotes the greater part of his argument to a discussion of the proposition that appellee had a mere license, revocable at the will of Winston & Co., citing numerous cases. We do not think it necessary to a decision of the case to consider whether the agreement was, or not, technically a license. The substance of the matter is to be looked to. The words of the agreement are:

“ In consideration of ten dollars ($10.00), receipt of which is hereby acknowledged, we hereby rent The Gunning System the' north wall of the building located 636 if. Clark street, for advertising purposes, for a period of one year from date, with privilege of its renewal yearly on like terms. It being agreed that in case said space should become obstructed to view by building, this contract shall become void, and we agree to rebate rent paid pro rata for its unexpired term.”

The contract is dated October 6, 1900, and is signed by The Gunning System and Winston & Co. This is a plain contract that, for the consideration of $10, appellee should have the right, for one year from October 6, 1900, to use the wall for advertising purposes, and should also have the privilege of the renewal of the contract yearly on like terms. The contract being a legal one, and for a valuable consideration, it was binding on the parties to it, and we can not conceive on what principle it could be rescinded or revoked by Winston & Co. without any fault on the part of appellee. A contract is to be understood in the sense in which the parties to it understood it, and it is clear from the language of the contract in question that the parties understood that it was to continue in force for one year, except on the contingency that the view of the wall should become obstructed by building. That such -was the understanding is further evidenced by the receipt given by Winston & Co. to appellant, which is as follows:

“ Chicago, October 1, 1901.

Received of Thomas Cusack & Co. twenty-five dollars, rent of wall space 636 N. Clark St., for one year, to commence after expiration of any existing lease.

Winstoh & Co.”

This was a recognition of the fact that appellee’s contract was still in force and not a revocation of it, as claimed by appellant’s counsel.

In Van Ohlen v. Van Ohlen, 56 Ill. 528, the defendant, for a valuable consideration, agreed to keep open a ditch on his land. He violated the agreement and suit was brought for damages. It was contended that the agreement was a mere license, revocable at will, in respect to which the court say:

“Here’there was a valuable consideration passing from the plaintiff to the defendant, for which the latter agreed to perform a certain act, the effect of which would be a benefit to the plaintiff. The cases cited were mere licenses, without consideration, and, of course, revocable when not created by deed. The case at bar is not one of license,” etc.

In Willoughby v. Lawrence, 116 Ill. 11, the right was granted, in writing, by the appellees to the appellants to use certain fences and buildings for advertising purposes. The court say:

“ The right conferred upon appellants by the contract was more than a mere revocable license, as claimed by appellees, because Willoughby & Hill actually constructed the fence at an expense to themselves of $2,300, and fully executing their part of the agreement;” citing Washburn on Easements, pp. 29 and 30, and Van Ohlen v. Van Ohlen, 56 Ill. 528.

The court clearly placed the non-revocability of the contract on the ground that the appellants had expended money on the faith of it. There was no revocation of the license in the present case, but merely a refusal to renew the contract, for the reason hereinafter mentioned, and the main question is, whether appellee was equitably entitled to its renewal. The facts are as follows: The contract does not provide for any notice from appellee to Winston & Co. of the intention of appellee to avail of the privilege of renewal, nor does it appear from the evidence that Winston & Co., at any time, applied to appellee for information as to whether it would desire a renewal. Under these circumstances Winston & Co. were bound to take notice that appellee might apply for a renewal at any time before the expiration of the year for which the right was granted. The last day of that year was Sunday, October 6, 1901. October 5, 1901, about 2:15 o’clock p. m., appellee’s superintendent went to the business office of Winston & Co. to pay $10, which he had with him, to that firm, and to procure a renewal of the contract, and found the office locked and no one there. The business office of Winston & Co. was the proper place to tender the money and apply for a renewal. Esmay v. Gorton, 18 Ill. 483, 487.

There is no evidence that appellee knew where either of the members of the firm of Winston & Co. resided, and he was not bound to search for their residences. The evidence of Beaver, appellee’s superintendent, is that he had been doing business with that firm for quite a while, and always at the firm’s office. Obivously it was not appellee’s fault that the office of Winston & Co. was closed and the members of the firm absent. Sunday, the last day of the year, being dies non, in legal contemplation, for the performance of any act under a contract, appellee made no tender or application for renewal on that day, nor, if it had made such tender and application, would Winston & Co. have been bound to receive the same. Hammond v. Am., etc., Ins. Co., 10 Gray, 306.

Mr. Beaver testified that on Monday, October 7, 1901, he called at the office of Winston & Co. and there saw Mr. Odell, a member of the firm. His testimony as to what occurred is as follows :

"I told Mr. Odell 1 had come to renew our contract, and I offered him ten dollars. I held the ten dollars in my hand which I offered to give him, and he told me, he says, 'I am sorry, but 1 am afraid you are too late. I have rented that to the Thomas Cusack Company.’ He says, 'I had forgotten there was a contract ’—he didn’t say forgot —he said, 'I had overlooked the point that you folks had the 'wall under lease.’ He said he had looked through his files and he couldn’t find a copy of the lease; and he told me that he didn’t make a lease, but he took a receipt for $25 from Cusack & Company for the wall, and that it was subject to any existing lease, and for that reason he couldn’t renew my contract.”

As will hereafter be shown, appellee, by keeping advertisements posted on the wall, remained in such possession as the subject-matter was capable of, except when wrongfully interfered with by appellant. In Wood on Landlord and Tenant, pp. 676 and 677, the author says:

"Thus, if the covenant contains a provision that if the lessee shall pay the rent and not be in arrear in respect thereto at the end of the term, if the tenant is in arrear at the end of the term, at law, his right to a renewal or to exercise an option to remain for another term is lost; but if the landlord, at the time when the rent falls due, is absent from the country or can not be found, and left no agent or person authorized to receive the rent for him, and the tenant shows that he was ready to pay the rent at the time, and avails himself of the earliest opportunity to do so upon the return of the landlord, a court of equity would protect his rights by compelling the landlord to execute a new lease or to continue the old one, upon the ground that the failure of the tenant to keep the condition was not willful, but was rendered unavoidable by the fault of the landlord himself, the rule in equity being that when the plaintiif can show that he has done everything in his power to perform, but by unavoidable accident, fraud, surprise, or ignorance not willful, he has. been prevented from literally performing the condition, the court will interpose in his favor upon his making compensation for the breach, where justice requires that any compensation should be made; and, it should be added, where the case is one where the breach is such as admits of compensation.”

In Taylor on Landlord and Tenant, 8th Ed., Sec. 339, the author, referring to equitable relief in such a case as the present, says;

“ The court will only interfere beyond the stipulations of a covenant where a literal performance has been prevented by unavoidable accident, fraud, surprise, or ignorance not willful, and upon compensation being made and no injury to the lessor.” See, also, 1 Pomeroy’s Eq. Juris., 3d Ed., 451.

Winston & Co. are not here complaining of the decree. In the present case laches can not be attributed to appellee. It attempted and was prepared to make a tender and apply for a renewal in apt time, but was prevented from doing so by the place of business of Winston & Co. being closed, which, as previously stated, was not its fault.

Appellee was rightfully in such possession of the wall October 5, 1901, as the subject-matter was capable of. On that day it had a sign of one of its patrons on the wall. Sullivan, appellant’s agent, who procured the contract for appellant under which he claims, testified that when he applied to Winston & Co. for a contract, he was informed by Mr. Odell, one of the firm, Mr. Winston being present, that he would not give to him, Sullivan, such a contract as he asked for, because there might be an existing contract with the Gunning System. Mr. Winston looked for a copy of that contract, but could not find it, or any record of it. Hence the words in the receipt given to appellant, namely, “ To commence after any existing lease.” Appellant must be presumed to have known what Sullivan, his agent, knew, that there might be an existing lease to appellee. Appellant made no inquiry of appellee in respect to its right in the premises, but, October 5, 1901, before appellee’s year had expired, painted over the sign placed by appellee on the wall, which in dimensions was twenty-five by thirty-four feet, and which appellant must have known was placed there by appellee. In doing this he was clearly trespassing on .appellee’s right, and his subsequent painting over of signs placed on the wall by appellee, in the assertion of its right, were but continuations of the trespass.

Appellant was never rightfully in possession, and, as against appellant, appellee must be deemed to have remained in possession and to have been so October 7, 1901, when it actually tendered to Winston & Co. $10 and demanded a renewal.

“ When the tenant, by the terms of the lease, has an option to remain for a longer period, such additional term is not a new demise, but a continuation of the old one. If the lease does not provide that notice shall be given by the tenant of his election, merely remaining after his term has expired is sufficient, and binds both him and the landlord for the additional term.” Wood on Landlord and Tenant, p. 6'78, citing Belash man v. Berry, 20 Mich. 292; Clarke v. Merrill, 51'"H. H. 415, and other cases which fully sustain the text.

The right claimed by appellant is expressed by the receipt of October 1, 1901, “to commence after expiration of any existing lease.” These words include in their meaning not only appellee’s right of enjoyment for the year specified in its contract, but also its right to a renewal at its option; so that if appellee, as between it and Winston & Co., is equitably entitled to a renewal, as we think it is, appellant must bide his time.

Appellee’s counsel cites numerous cases to the effect that when an act is required to be performed by a certain day, as, for instance, the payment of a promissory note, without grace, and the last day is Sunday, payment may .be made on the next Monday; but having some doubt of the relevancy of such cases to the present case, we are disinclined to place our decision on that ground.

For the reasons heretofore stated, the decree will be affirmed.