Alexander v. Loeb

Mr. Justice Carter delivered the opinion of the court: From the propositions of law held by the trial judge it is apparent that he made the finding under the count of the declaration claiming double the rental value, for willfully holding over, and not under those counts based on the covenants of the lease for the payment of $20 per day for holding over. Appellants contend that a recovery on any of the grounds charged in the declaration is barred and waived .by the election to sue on the appeal bond given in the forcible entry and detainer suit and the recovery and satisfaction of the judgment therein. This precise question has never been decided by this court, and while many authorities from other jurisdictions have been cited, none of them are on “all fours” with the question here involved. In Doe ex dem. Cheny v. Batten, 1 Cowper, 243, it was held that the acceptance of rent after notice to quit did not imply a consent that the tenancy should continue, but the court stated incidentally that such acceptance was a waiver of the landlord’s right to double rent under the statute. The point covered by this last statement was not in the case. In Wright v. Smith, 5 Esp. 203, it was held that when a tenant held over after the expiration of his term and the landlord recovered possession by ejectment, he could not thereafter maintain an action of debt under the statute. Some three years thereafter, in reviewing this last case, the court, in Soulsby v. Neving, 9 East, 310, practically overruled the former decision, and held that after the landlord had recovered in an action of ejectment he could still maintain an action of debt under the statute and recover for double the yearly value of the premises during the time the tenant held over after notice to quit. In Ryal v. Rich, 10 East, 7, the landlord had declared in debt, first, for the double value of the rent, and second for the use and occupation. The tenant tendered single rent before the action was brought and “paid into court the money, which plaintiff took out before the trial and still proceeded. It was held that this was no cause of non-suit as being a waiver of plaintiff’s right to proceed for the double value; that the cause should have gone to the jury, and the plaintiff’s going on with the action after taking the single rent was not evidence to show that he meant to waive his claim for double value, but that he merely accepted it pro tanto. This decision was quoted with approval in Higgins v. Halligan, 46 Ill. 173, where this court stated that “the doctrine is well established that accepting a sum tendered, if not accepted in full of all demands, does not preclude the party from proceeding for more.” Ereeman on Judgments (4th ed. sec. 259,) says that the best and most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence would sustain both the present and the former action. The parties to this suit are not the same as to the suit on the appeal bond. There, only one of the appellants, and his bondsman, Loeffler, were parties defendant. Under the conditions of the appeal bond appellees could not have recovered in that case for double rent or for $20 per day liquidated damages. In Wilson v. Hoffman, 52 N. W. Rep. (Mich.) 1037, it was held that the judgment for rents and profits in ejectment was not a bar to an action in trover for the cutting and removing of standing timber from the premises by the defendant while in possession. In Lehan v. Goode, 62 Mass. (8 Cush.) 303, the court held that a judgment and satisfaction in an action on a bond given to dissolve an attachment constituted no defense to an action on a bond given, on appeal, to obtain a review of the action on which the attachment was made. In Ackley v. Westervelt, 86 N. Y. 448, it was argued that because the plaintiff sued on an appeal bond given in a forcible entry and detainer suit and recovered a judgment which had been paid, no further suit could be brought for rent not covered by the appeal bond but which had accrued during the withholding. The court held to the contrary, stating that the bond did not supersede the original lease between the parties or alter the terms upon which the defendants were holding the premises ; that it operated as collateral security as far as it went; that the amount recovered on the suit on the appeal bond would go in diminution of what would otherwise be recovered in an action for rent, and to that extent should be applied pro tanto. The action on the appeal bond in the forcible entry and detainer suit herein was commenced May 24, 1902, and this action was commenced four days later. It is manifest that in accepting the payment of damages in the suit on the appeal bond appellees did not intend to waive their claim for the double value of the rent or the $20 per day damages dedared for in this proceeding. Under the authorities cited, and upon principle, the suit on the appeal bond, and the payment of the judgment therein, cannot be held to have merged this suit -in that judgment or to act as a bar to recovery herein. The following additional authorities tend to support these conclusions: People v. Allen, 86 Ill. 166; Chicago Opera House Co. v. Paquin, 70 Ill. App. 596; Reilly v. Sicilian Asphalt Co. 170 N. Y. 40; Ex parte Bate, 3 Deacon, 358; Holmes v. Bell, 3 M. & G. 118; People v. Sylvester, 22 Ch. Div. 98; Gillespie v. Keator, 56 Fed. Rep. 203. Appellants also contend that they are not liable for the penalty of double rent, as they held over unde^ a claim of right, and therefore not willfully.' The plain meaning of the statute seems to require that the holding over must be willful, and the trial court so held. The authorities sustain this finding. (Stuart v. Hamilton, 66 Ill. 253; Prickett v. Ritter, 16 id. 96; Chapman v. Wright, 20 id. 120; 2 Taylor on Landlord and Tenant,—9th ed.—sec. 622.) The trial court, however, found that the holding over was willful. Appellants contend that the evidence does not support this finding. This was a controverted question of fact, and on such questions the judgment of the Appellate Court, when it approves the judgment of the trial court, is conclusive on this court. The only question that can .be reviewed here is whether there is any evidence in the record fairly tending to support plaintiffs’ cause of action. The weight of the testimony is not involved. Chicago and Eastern Illinois Railroad Co. v. Snedaker, 223 Ill. 395; Chicago City Railway Co. v. Martensen, 198 id. 511; Blakeslee’s Express Co. v. Ford, 215 id. 230; Poppers w. Meagher, 148 id. 192. It is also' contended that the tenants are not liable for the double rental unless there was a written demand for possession by the landlord, and that the manifest weight of the evidence is that there was no service of such written demand. Here, again, the finding of the Appellate Court affirming that of the trial court as to the service of such notice is conclusive. The further contention is made that the judgment is excessive. Ordinarily this court has nothing to do with the amount of the judgment when it has been approved by the Appellate Court. (City of LaSalle v. Kostka, 190 Ill. 130; Chicago, Rock Island and Pacific Railway Co. v. Steckman, 224 id. 500.) The basis upon which the trial court figured out the amount of this judgment has not been preserved. Counsel for appellants state that if there is evidence to show that the property was worth $176.85 a month rent, then the amount of this judgment can be sustained. There is evidence tending to show that it was' worth more than this amount. It is true, this question is controverted; but here, as in the other questions noted above, this court cannot interfere on this point in the present state of the record. In this connection it is also contended that interest cannot be included in the finding. This point was not raised on the motion for new trial or in the assignment of errors and cannot now be raised on appeal. Bank of Commerce v. Miller, 202 Ill. 410; Lasher v. Colton, 225 id. 234; Wickes v. Walden, 228 id. 56. Appellants also contend that even if they are liable, on the facts in this record, for the double rent, appellees cannot recover, as the premises were leased to Kolacek, and that if any rental is due, .Kolacek is the one entitled to it. With this contention we do not agree. It will be noted that under the lease to Kolacek his term did not begin until April 1, 1901,—three months after the expiration of the appellants’ lease. The contemporaneous agreement with Kolacek, heretofore referred to, provided specifically that the possession should not pass to Kolacek during the time appellees were prevented from delivering the possession of the premises by the action of appellants. The lease and agreement must be considered together, as they were executed at the same time. (Wilson v. Roots, 119 Ill. 379; Gardt v. Brown, 113 id. 475-) This conclusion does not conflict with that in Gas-solo v. Chambers, 73 Ill. 75, cited by appellants, the facts in the two cases being entirely different. As the evidence justifies the finding of the trial court holding appellants liable for double rent, it is unnecessary for us to discuss the question whether the $20 a day provided in the lease should be considered as a penalty or as liquidated damages. We find no reversible error in the record, and the judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.