Pike v. Leiter

Moran, P. J. Hpon the facts set out in the foregoing statement, which contains all that we deem material appearing in the record of this ease, three principal questions arise : 1st. Did Leiter obtain title by the deed of conveyance made to him by Henry 0. Turnbull, trustee, to anything more than the east seventy-three feet of the lots mentioned in the Bowen lease? 2d. Was the award made by Mark Skinner a valid award, and was his valuation of the east seventy-three feet of the lots, or of the whole hundred feet square described in the original lease? 3d. Was the lease tendered by Leiter to Cherry on September 11, 1885, accepted by Cherry, and is it a binding and subsisting lease? 1st. Letter’s title rested solely on the deed made to him April 10. 1378, and that described the land in question as described in the Bowen lease, but conveyed it expressly subject to such rights as the City of Chicago might have acquired to the west twenty-seven feet of said lots as a part of State Street, by deed, condemnation proceedings, judgment or otherwise. Without entering upon a discussion of the various points made by counsel for appellants as to the regularity or validity of the condemnation proceedings prosecuted by the city, or undertaking to determine what would be the condition of the title of the west twenty-seven feet of the lots in question, as affected by the condemnation proceeding alone, we are clearly of opinion that by operation of said condemnation proceeding, the possession obtained by the city, the judgment obtained by Turnbull in the United States Circuit Court for the value of the said twenty-seven feet, as assessed in the condemnation proceeding, and the delivery by Turnbull of the quitclaim deed in escrow, the city had acquired, as against Turn-bull, prior to the time of the conveyance by him to Leiter, a title to the said west twenty-seven feet, anda right paramount to use and maintain the same as a part of State Street. When Leiter obtained his deed from Turnbull he was powerless to change the conditions then existing with reference to said west twenty-seven feet, and by taking the deed he assumed no obligation to do so. Nor can we see that his purchase of the judgment in the United States Court in any manner affected his relation to the title of the property. The city had, under the stipulation, the right to pay the judgment and place the quit-claim deed on record. Letter, by becoming the assignee of the judgment, had the right to receive the money when the city was ready to pay it, but if he had refused to take the money when the city offered it, he could not thereby prevent the city from putting the deed on record. The city, then, having acquired a title to the west twenty-seven feet of the lots prior to the conveyance by Turnbull to Leiter, it follows that Leiter obtained by his deed title to the east seventy-three feet of the lots only. No doubt the tenants under the Bowen lease were entitled to an abatement or rebate of the rent, to the fair rental value of the seventy-three feet taken by the city, as against Turn-hull, and as against Leiter from the time he commenced taking the rent under said lease till the termination thereof. 2d. ' At the time Pike gave notice to Leiter of his desire to take a new lease in accordance with the provisions of the Bowen lease, both of them well knew all the facts relating to the situation of the property and the condition of the titfe. We think it clear that the appraisers selected by the parties were not expected by either of them to value,for the purpose of fixing a rental, the west twenty-seven feet of the lots described in the lease, which portion of said lots was, to the knowledge of all the parties, held and used as a public street, under a title obtained by the city for that purpose. The notices given by the parties to each other of the selection of appraisers, stated that such appraisers were selected under the provisions of the Bowen lease, but it must he intended that the appraisal of the property for rental was to be of that portion only of the land described in the lease which the proposed lessor had title to, and would not include a portion in use as a street, and, to which the lessor bad no title. The notices and the provisions of the Bowen lease constituted the submission. The purpose of the appraisal was to fix a basis for adjusting the rent that should be paid for such portions of the land as were vested in Leiter by the Turnbull deed. It is true that the instrument signed by the appraisers appointing Skinner umpire, described the land to be appraised as the lots mentioned in the Bowen lease, but it dearly appears from the award that the umpire was not misled by such description, and that he valued only the portion of the land which it was the intention of all the parties lie should value, that is, the east seventy-three feet of the lots mentioned in the Bowen lease. We do not consider the award rendered susceptible of any other construction. The west twenty-seven feet used and occupied as a part of State Street is treated in the award as diminishing the land described, and, as it is said, “leaving the premises now one hundred feet front on said street, by seventy-three feet deep,” and the value of the same is fixed at $300,000. The submission was a valid submission, and the award is a clear and precise answer as to the value of the land, upon which, under the provisions of the Bowen lease and the rights and obligations of the parties to the submission as they existed at the time, it was competent to fix a value. The conclusion must be, therefore, that the award was valid. 3d. The yearly rental of the land to be demised by the renewal lease having been ascertained in accordance with the terms and provisions of the Bowen lease, and Pike, as assignee of said lease, having, by compliance on his part with tliu terms of said lease in that regard, entitled himself or his assignee to a renewal lease at the expiration of said Bowen lease, the duty of Leiter on July 1,1885, was one of performance. The covenant to renew the lease ra.n with the land, and he was bound to discharge that covenant as to such portion of the reversion as he held as grantee. By agreement it was competent for Pike to have accepted as performance something less than was called for by the covenant, and so Leiter might have granted something more. We find that there was negotiation, or perhaps it might more properly he called contention, between Leiter and Pike as to the terms of the renewal lease, and that the contention was continued after the assignment from Pike to Cherry. All efforts of the parties to agree on the draft of a lease which, in any particular, was a departure from the provisions of the Bowen lease, were terminated by- the letter of Cherry, concurred in by Pike, and dated July 8, 1885. That letter notified Leiter that strict performance was demanded of him, and thenceforth the parties dealt at arm’s length. lío more drafts of leases were submitted by the one to the other for approval, but Leiter, recognizing the requirements of the situation, prepared to tender full performance of his covenant. A lease was prepared by him in strict compliance with the provisions of the Bowen lease, and describing the land demised as it was described in the conveyance from Turnbull to him. This lease, signed and sealed by Leiter, he sent to Cherry, accompanied by the letter set out in the statement of facts, in which he said: “ In performance of the said agreement for a new lease, so far as I am, or the land owned by me is chargeable with the burden of fulfilling said agreement for a new lease, I hereby tender to you for acceptance a lease, duly executed by myself, of all those premises, situate in the City of Chicago,” etc. It will be observed that this is a tender of the lease for acceptance ás a lease. There was no condition that the lease was to be accepted as full performance of the covenant, though Loiter’s position, of course, was that it was in fact and in law a full performance. As is said by the learned counsel for Leiter in their brief filed in this court, “In legal effect the simple question put by the tender of the lease was: Will you become my tenant in respect to the land described in the tendered lease at the rental named therein, and be subject in respect to that land and that rental to, the provisions of the tendered lease relating thereto ? ” The acceptance of the lease, then, as a lease of the land described in it, would necessarily constitute it a valid and subsisting lease between the parties to it, notwithstanding the fact that Pike, or Cherry for Pike, insisted that the lease was not a full performance of the covenants of the original lease, and that Leiter would be held for damages for non-performance of said covenants in full. The question of whether the covenant was performed was and is, under the facts of this case, an entirely different. one from the question—was the lease accepted ? The tender of the lease by Leiter constituted a delivery of it. The transfer of the instrument from Leiter to Cherry was for the purpose and with the intention on Leitef’s part of vesting in Cherry the estate granted by the lease. This is manifest from his acts and from his words. He intended by what he did, to accomplish a full and final performance on his part. He did not contemplate any further acts of performance whatever. We find nothing in his conduct or his words that gives support to the contention of his counsel that the tender did not constitute a delivery, on his part, of the lease. There is no indication that he expected a communication assenting to the terms of the lease, but returning it to him to be delivered by him to Cherry, bTotliing less than a delivery or offer to deliver on his part, would he a performance of his covenant; hence his tender was a delivery or a tender of delivery, which, if accepted, would at once become a completed delivery of the instrument. But tlie question still remains, was the lease accepted? The acceptance of an instrument, like the delivery of it, is a matter of intention to be gathered from the acts and words of the person to whom the instrument is offered. How, what were Cherry’s acts? After applying to Leiter to leave the question in abeyance for a day or two, and having been refused and told that Leiter stood on his tender of the lease, he signed and sealed the instrument which Leiter had delivered to him,, and made a duplicate thereof, which he also signed and sealed, and delivered to Leiter to sign and seal, and retain as a duplicate copy of said lease, blow, treating the words contained in the communication accompanying the duplicate lease, that “in accepting the lease I do not agree to pay the sum of 818,000 per annum,” as indicating a rejection of the lease, as counsel contend they did, and what, under the rules of law, must he our conclusion? If there were no inconsistent words, it will he admitted by all that the acts done by Cherry in signing and retaining the lease delivered to him, and sending a duplicate of it executed by himself to be signed and retained by Leiter, would be regarded as most satisfactory, if not most conclusive evidence of his intention to accept the lease. His most solemn and deliberate acts evince an acceptance; his words are said to he inconsistent therewith. But, saith my Lord Coke, “When the words are contrary to the act which is the delivery, the words are of none effect— non quod dictum est} sed quod factum est, inspicitur„” Co. Lit. 36 a. And in Leake on Contracts, at page 13, it is said: “In judging of intention from a person’s words and conduct, where his acts are inconsistent with his words, the former are, in general, accepted as a more reliable guide to the intention than the latter, and the conduct may, in some cases, determine the intention, even in opposition to the words.” Under this rule, which is based on sound reason, it is very dear that Cherry’s conduct proves an acceptance of the lease by him, even allowing that the words of his letter to Leiter indicate a contrary intent. But we are of opinion that the words of the letter, when all read and considered, can not be understood asa rejection of the lease. He wrote: “I give you notice that I accept the lease signed by you, bearing date July 1, 1885, and left with me on the morning of September 11, 1885, as a lease of a part of said lots described in the original lease, and being all of said lots that you are able to lease to me, and furnish me the possession of, by reason of your own wrongful act in the premises.” That is a plain acceptance of the lease in words, as being a lease of part of the lots and all that Leiter was able to lease, just as Leiter himself contended. It may be that the words of the letter show a reluctant, grumbling, carping acceptance, but there is none the less a clear and unconditional acceptance. But it is contended that the words, “I further give you notice that in accepting said lease I do not agree to pay the sum of §18,000 per annum,” was a rejection of, or refusal to be bound by the chief agreement on the tenant’s part, i. e., to pay the rental named in the lease; that this notice which accompanied the duplicate lease is to be construed with it, as two instruments executed at the same time as parts of the same agreement. The facts here do not permit the application of the principle invoked. The letter or notice was not an agreement between the parties contemporaneous with the lease. It was not an agreement between the parties at all, and does not purport to be. Allowing it the utmost dignity that can be ascribed to it, it was but an attempt to annul the binding effect of a sealed covenant, by parol expressions made by the covenantor contemporaneous with the delivery of the instrument containing the covenant. As such it was utterly without legal consequence or effect, and could never be introduced in evidence to defeat or modify the covenant. Cherry became bound to pay the rent reserved in the lease when he accepted, signed and sealed the lease tendered to him by Leiter, and when he had done that and had also signed and scaled a duplicate thereof and delivered it to Leiter he created the most solemn evidence of his agreement which is known to the law; and it is a proposition of law settled beyond controversy, that parol words, whether prior, contemporaneous or subsequent, are, in the absence of fraud, impotent to alter or annul such an obligation. Chapman v. McGrew, 20 Ill. 104; Herrick v. Swartwout, 72 Ill. 340; Chitty, Con., 5 and 7. We conclude, then, that the lease tendered by Leiter to Cherry was duly accepted by him, and that it became and is a valid and subsisting lease. The notice of Leiter, that he held Cherry’s communication a rejection of the lease tendered, was of no effect, and the rent reserved in the lease having been regularly tendered to him by Pike on each quarter day as it became due, the proceedings by Leiter to get possession of the premises were in violation of his obligations under the lease. It follows that the Superior Court erred in adjudging in the decree appealed from, that the said lease had been rejected by Cherry and was not a valid and subsisting lease binding on Leiter, and in ordering the surrender and cancellation thereof, and in granting any of the .relief granted uponLeiter’s cross-bill. Pike prayed in his bill for a rebate of the rent paid by him to Leiter, and the decree allows to him a rebate to the amount of $2,880. We have examined the evidence introduced by Pike to establish the amount of rebate he should be allowed and are of opinion that the amount allowed by the court is the amount that should be allowed, and that finding of the decree will therefore be affirmed. Leiter is entitled to receive from Pike all the accrued rent from the commencement of the term under the renewal lease, and said renewal lease will be found to be a valid and subsisting lease of the premises therein described for the term therein named. As the. conclusion reached will render relief under the cross-bill of Parmly and Sweet unnecessary, the same as well as the cross-bill of Leiter, will be dismissed at Leiter’s cost. The decree of the Superior Court is reversed, save as to the allowance of said rebate of $2,880, and the case remanded to that court with directions to enter a decree in conformity with this opinion. • Reversed and remanded.