McIntosh v. Hodges

Hooker, J. One Brown was owner of a store building in Chicago. On April 4, 1892, J. E. Kimball, professing to be agent for Brown, made and executed in his name a written lease for the premises to the defendant, from the 1st day of August, 1892, until April 30, 1894. Said lease was a sealed instrument. The defendant covenanted to pay rent as follows, viz.: “The sum of twenty-four hundred and seventy-five ($2,475.00) dollars, payable in monthly installments of seventy-five ($75.00) dollars for the first nine months of said term, and one hundred and fifty ($150.00) dollars per month for the last twelve months of said term, all payable monthly in advance upon the first day of each and every month of said term, at the office of J. E. Kimball, Chicago, Illinois.” Kimball had no written authority to lease the premises. The defendant entered at once, and in person and by tenant occupied until November 15, 1893, when the premises were vacated. Plaintiff claims that the key was retained by the defendant, who afterwards refused to pay the rent, and this action was brought; the declaration counting upon the lease, a count for use and occupation being added. Plaintiff purchased the premises from Brown on September 10, 1893, and at the same time Brown’s interest in the lease was assigned to him in writing by Brown. He received the rent for October from Kimball. This action was brought to recover the rent due at the expiration of the term fixed by the lease. The defendant claimed that the lease was void under the statute of frauds of Illinois (Rev. Stat. chap. 59), section 2 of which reads as follows: “Sec. 2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract, or some memorandum or note thereof, shall be in [321] writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales upon execution, or by any officer or person pursuant to a decree ■ or order of any court of record in this State.” The circuit judge took the defendant’s view of this statute, and excluded the lease. In the case of Lake v. Campbell, 18 Ill. 106, it was held that an agent might make a valid lease for four years, although his authority was not in writing. Counsel for .the, defendant seek to avoid the force of that case by claiming (1) that we cannot presume that the statutes of Illinois are the same now as when thar case was decided; (2) that, if they be unchanged, the case cited is not applicable, because the lease was a sealed instrument. To our minds the discussion in the case of Lake v. Campbell shows that section 2 of the Illinois statute was the same then as now, but the court held that that section did not apply to leases, but to other estates enumerated in the opinion, and it referred to other sections to show an intent on the part of the legislature to except leases from the requirement that the agent’s authority must be in writing. We cannot assume that these sections have been changed. It is unnecessary to repeat the reasoning of this interesting case, as we have only to follow the construction of the Illinois court when we ascertain what it is. The same case holds that a seal is unnecessary to such a lease. Counsel seem to concede that fact, but assert that, inasmuch as it was affixed, the consequences are the same as though it were essential to the validity of the lease, and- that the agent’s authority must be shown to have been in writing and under seal. They cite no authority in support of this proposition, and we think it is not the law. The seal may be treated as surplusage. Counsel for the plaintiff cites authority which seems conclusive of the question. Bless v. Jenkins, 129 Mo. 647; Mechem, Ag. §§ 95, 141, and notes, [322] Rhe lease being valid under the law of Illinois, we are constrained to reverse the judgment, and direct a new trial, and it is so ordered. The other Justices concurred.