Leadbeater v. Roth

Walker, J. The affidavit upon which the motion to dismiss was based, states that defendant in error was not a resident of this State at the time it was made, but that he was then a resident of Germany. It was sworn to on the 8th day of February, 1859, and the suit had been instituted on the 27th day of the previous January. This affidavit does not negative the fact that he was a resident of this State at the time the suit was brought, nor was this defect in the affidavit aided by the evidence Mueller gave at the trial of the motion, on the eleventh day of the following May. He testified that defendant in error was then sojourning in Germany, and had been for some months, but he had learned from the agent of defendant in error, that he designed to return to and continue his residence in Chicago. This may all be true, and still the defendant have been a resident of Illinois at the commencement of the suit. He may have left after suit was instituted and before the affidavit was made, and as the question of residence is to a great extent one of intention, he may, upon leaving the State, have determined to change his residence from this State to Germany, and if so, the affidavit was true. When Mueller gave his testimony, three and a half months after he left Chicago, which was ample time for plaintiff to become a sojourner of Germany, and for his agent to learn that he intended to return and resume his residence at Chicago. But whilst the evidence fails to show that he was a non-resident of the State on the 27th day of January, still it was sufficient to show that he had, after that time, become a non-resident, and authorized the requiring a bond for costs, under the second section of the statute. The doctrine'is well recognized, that an eviction of the tenant by the landlord or a stranger, at any time during the term, will discharge the tenant from the further payment of rent. Or if the landlord, by any act of his, renders the lease unavailing to the tenant, he is thereby exonerated from the terms and conditions of the lease, and he may abandon it. Hilligan v. Ward, 21 Ill. 470. Then did the acts of the defendant have that effect ? The evidence is clear and indisputable that his agent forbid the under-tenant of plaintiff in error to pay any more rent to his landlord. This, unexplained, would amount to a virtual eviction of the’plaintiff in error. By that act, his right to control the premises, to receive rent, and to hold Ayres as his tenant, was denied, and the right of defendant in error was asserted, and left plaintiff in error at liberty to treat the lease as terminated. It seems that he ceased from that time forward in any way to control the premises, and we think the evidence abundantly shows that the tenancy terminated at that time. Again, this was a verbal lease, by the month. It might, unquestionably, be terminated in the same mode as it was made. It is clear, from the evidence, that plaintiff in error told the agent of defendant in error that he must look to Ayres for the rent. It also appears that the agent notified Ayres to pay no more rent to plaintiff in error, and that Ayres refused to, and did not afterwards pay rent to plaintiff in error. From these circumstances, it is clear that it was the intention of the parties to terminate the lease at that time, and what they then did was sufficient to have that effect. Plaintiff in error was liable to pay any rent that might have • been due at the time the agent notified Ayres to pay no more rent to plaintiff in error. But upon the evidence contained in this record, he could not be liable for rents which accrued after that time. We are therefore of the opinion that the finding of the jury is manifestly against the evidence, and that the court below should have granted a new trial. The judgment must be reversed, and the cause remanded. Judgment reversed.