Dennick v. Ekdahl

Mr. Justice Waterman delivered the opinion of the court. Appellees contend that they were constructively evicted, and hence, as they had a right to do, moved out, paying all rent for the last month during which they occupied the premises. . 1 A physical expulsion of a: tenant is not necessary to constitute an eviction which will enable him to successfully defend against an action for rent. Such acts of interference with the possession of the tenant, by the landlord, as clearly show an intention upon his part to deprive the tenant of the enjoyment of the premises, and that he shall not longer continue to occupy them, will authorize an abandonment of the possession by the tenant. 2d Ed. Am. & Eng. Ency. of Law, Vol. 18, p. 298. Where a constructive eviction is claimed the intent of the landlord to evict must appear, and this is a question of fact for the jury. Taylor on Landlord & Tenant, Section 381. In Morris v. Tilson, 81 Ill. 607-623, the Supreme Court said: “The rule laid down in Hayner et al. v. Smith and wife, 63 Ill. 430, and followed in Lynch v. Baldwin, 69 Ill. 210, and Walker et al. v. Tucker, 70 Id. 527, is, that acts by the landlord, in interference with the tenant’s possession, to constitute an eviction, must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to hold the premises.” See also, Chicago Legal News Co. v. Browne, 103 Ill. 317-321. Where a constructive eviction is claimed, the abandonment of the premises by the tenant must be within a reasonable time after the acts complained of. Dewitt v. Pierson, 112 Mass. 8; Edgerton v. Page, 1 Hilton (N. Y.) 320; same v. same, 20 N. Y. 281. In the present case there is no evidence tending to show that the landlords intended to disturb the tenants, deprive them of the enjoyment of the premises or do anything that would cause them to abandon the same. . The landlords were not bound to repair; but being requested by the tenants to do so they sent a plumber, giving him no directions as to in what manner the defect complained of should he remedied. Manifestly, the landlords did not intend to do a wrongful act, or one injurious to the tenants. The plumber, a licensed workman, used his own best judgment. What he did may not have been the best thing to do but he evidently thought it was. The defendants thereafter continued in the place for some six months. True it is, they did once complain to Mrs. Dennick of the sewer gas and she said she would fix it. It does not appear that a complaint was made at anytime of the removal of the trap nor that it was stated that the removal of the trap caused the presence of the gas. While, whether acts constitute an eviction is a mingled question of law and fact, there must be shown an intention of the landlord, manifested by acts, to deprive the tenant of the beneficial use of the premises—in brief, a violation of the landlord’s contract of enjoyment, to warrant a finding of eviction by a jury. Such there was not in this case. The judgment of the Circuit Court is reversed and the cause remanded.