Marshall v. John Grosse Clothing Co.

Mr. Justice Craig delivered the opinion of the court: Three grounds are relied upon by appellant to reverse the judgment of the Appellate Court: First, that the former judgment in the circuit court is a bar to this action; second, that, even aside from such bar, the defendant produced evidence of an eviction, on which he was entitled to go to the jury; and third, that the court erred in his manner of examining the witnesses, and particularly the appellant; in peremptorily concluding the case and instructing the jury to find for the plaintiff and assess its damages at an amount named by the court, and refusing all instructions requested by the defendarit. Upon an examination of the record it will be found that the former suit was for rent from September 1, 1896, to April 30, 1897, whereas the present action is for the rent accruing subsequent to that time, to-wit, from May 1, 1897, to January 31, 1898. It may be conceded that a single cause of action cannot be split into two or more parts and separate suits be brought for the different parts of what, in fact, constitutes a single demand; but as said by counsel in their argument, “the bare fact that two causes of action spring out of the same contract does not ipso facto render a judgment on one a bar to a suit on the other.” The same contract may, and often does, contain independent provisions for the payment of money at different times and in different amounts, and suits may be maintained on each provision of the contract as the payments mature by the terms of the contract. In McDole v. McDole, 106 Ill. 452, it was expressly held that where a lease provides for the payment of a given sum annually, separate actions may be brought upon the lease for each year’s rent, and a judgment for one year’s rent is no bar to a second action for the rent of a subsequent year. So in Casselberry v. Forquer, 27 Ill. 170, it was held that where several payments reserved by a lease were due, suit might be broüght on each payment successively, as they fall due. (See, also, 1 Ency. of Pl. & Pr. 154.) It is true that here the two suits were between the same parties and on the same lease, but they were not for the same causes of action, and hence the former suit is no bar to the present action. It is also claimed that after appellant abandoned the leased premises, acts of appellee in taking possession and renting a portion of the premises, and in makitig alterations in the hallway and .one of the rooms, constituted an eviction, and upon that ground appellee could not recover. There are two answers to this position. In the first place, the premises were abandoned by the appellant without the fault of appellee, and when such is the case the landlord may re-enter and re-rent the premises, crediting the former tenant with the proceeds, and his so taking possession does not relieve the tenant from /liability for the stipulated rent. (Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514.) Second, it appears from the record that the vacation of the premises by appellant, the re-entry by appellee and the alterations to the premises set up as a defense, were prior to the commencement of the former suit, and the judgment in the former suit is conclusive on appellant as to all questions concerning the validity of the lease which were or might have been raised and determined under the issues in the former suit, as held in Louisville, New Albany and Chicago Railway Co. v. Carson, 169 Ill. 247. Appellant, however, seeks to avoid the effect of the former judgment by the claim that he did not. learn of the alterations until after the former trial. The premises were vacated by appellant in August, 1896; the alterations were made in January, 1897; the first suit was commenced April 20, 1897; appellant learned of the alterations in May or June, 1897, and the first or former suit was tried in November, 1897. This shows appellant knew of the alleged defenses about five months before the former trial. Under the third ground relied upon for a reversal of the judgment, it is claimed that the court took upon itself the examination of witnesses to the exclusion of counsel. In the trial of a cause the attorneys have the undoubted rig'ht to examine their witnesses, and the court has no authority to prevent counsel from exercising that right on the trial of a case. But no objection was made to the action of the court in the examination of witnesses nor was any exception preserved, hence no question is presented for our determination in regard to the action of the court. It is also said the court terminated the trial before counsel for the defense had rested their case and before the testimony for the defense was all in. The record fails to show that the defendants offered other or further evidence, and in the absence of such a showing it will be presumed that the evidence was all in. It is also claimed that the court erred in instructing the jury to find a verdict for the plaintiff. As there was no conflict in the evidence it was a question of law whether, on the facts, plaintiff was entitled to a verdict, and as there was no evidence tending to support any defense interposed by appellant the court properly instructed the jury to return a verdict for the plaintiff. Rack v. Chicago City Railway Co. 173 Ill. 289; Angus v. Chicago Trust and Savings Bank, 170 id. 298. The judgment of the Appellate Court will be affirmed. Judgment affirmed.