Dauchy Iron Works v. Toles

Mr. Justice Sears delivered the opinion of the court. It is apparent that the jury reached' their verdict by allowing to appellee damages for failure to furnish steam power according to the covenants of the lease. The jury could have returned no other verdict under the rulings and instructions of the court; The evidence which was stricken out by the court tended to show a waiver of that condition of the lease which provided for the furnishing of steam power during all the term of the tenancy. Counsel for appellee contends that the ruling was proper, because the lease, being under seal, its provisions could not be altered by parol agreement. In other words the contention is that because the conditions of this sealed instrument provided for the furnishing of power throughout the term' of the lease, no waiver of such provision could be effected by parol, and whatever the agreement- and consent of the parties may have been, yet the very fact that no power was furnished, was conclusive as to the right of appellee to damages for breach of the contract. The rule governing is not so harsh and unreasonable. It is true, as contended by counsel, that the terms of an executory contract under' seal, can not be so changed by parol as to leave a contract to be enforced which rests partly upon the agreement under seal and partly upon agreement, by parol. But it does not follow that a discharge or release of any condition of a contract under seal may not be effected by parol. On the contrary, the well-established ■rule is that such a release may be by parol. White v. Walker, 31 Ill. 422; Vroman v. Darrow, 40 Id. 172; Moses v. Loomis, 156 Id. 392. There is another principle, closely allied to the rule above announced, which would govern. It is that one can not complain of breach of a covenant when such breach has been induced by his own acts or conduct. While this doctrine has been applied mainly in equity, yet cases are not wanting where it has as well been permitted to govern at law and in relation to sealed contracts. 2 Parsons on Contracts, 793; Fisher v. Smith, 48 Ill. 184; Moses v. Loomis, supra. The evidence should not have been stricken out. The issue as to whether appellee agreed that no power need be furnished until he had occasion to use it, and whether it was at such times furnished, should have been submitted, under proper instructions, to the jury. The judgment is reversed and the cause remanded.