Fortune Bros. Brewing Co. v. Shields

Mr. Justice Brown delivered the opinion of the court. It will be seen from the refusal of the trial judge to hold certain propositions of law set forth in the statement prefixed to this opinion, that he held against the right of the plaintiff to recover possession of the premises herein involved for several different reasons, and that his decision could have been placed on distinct lines of reasoning. He evidently held with the defendants that the right of re-entry for a condition of a lease broken is not assignable without the reversion, notwithstanding section 14 of the Illinois Landlord and Tenant Act passed in 1873, and based on, although by no means identical with, the 32 Henry VIII, 34. Said section 14 declares that “the assignees of the lessor of any demise * * * shall have the same remedies by entry, action or otherwise, for the non-performance of any agreement in the lease * * * as their grantor or lessor might have had if such reversion had remained in such lessor or grantor Appellant claims that this language covers the right of re-entry, although no “reversion” is conveyed by the assignment. Appellees, however, claim that such a right of reentry, on which alone this action and judgment for restitution can be upheld, is a mere incident to the reversion. If a breach of the agreements of the lease had given cause for a forfeiture, they say, the right to re-entry and restitution of possession, if it existed, existed in the reversioner, Allen. There was nothing in the Fortune Bros. Brewing Company to which it could attach. If this theory of the law is correct, it follows, irrespective of other considerations, that this judgment for possession in favor of the Fortune Bros. Brewing-Company cannot be sustained. This was evidently the holding of the trial court, and it is the belief of the writer of this opinion that that holding was the proper \ one, and that although the reasoning on which it rests is inconsistent with the opinion of a learned judge of the Appellate Court for the Third District in Drew v. Mosbarger, 104 Ill. App. 635, it is justified by a logical development of what was said by the Supreme Court in Sexton v. Chicago Cold Storage Company, 129 Ill. 318. By the opinion of Judge Wright in Drew v. Mosbarger it is in effect held that the assignment of the lease by the lessor assigns or grants the reversion for the unexpired term. This theory is inconsistent with the implications of the opinion in Sexton v. The Chicago Cold Storage Company, and is expressly excluded by the stipulation of facts in this case. A majority of this court, however, hold it to be not necessary or desirable to pass in the case at bar on the question involved in this contention. The decision will therefore be placed on other grounds. Neither does the court pass on the question, over which, there is a vigorous contest, of whether or not the acceptance of the rent for January, 1906, by John Sweeny as agent for the Fortune Bros. Brewing Company on January 20, 1906, after knowledge had come to that company that the defendants were using and selling beer made by parties other than it, was a waiver of the right to declare a forfeiture of the lease and reenter. A decision of this is also held unnecessary, for whatever conclusion might be reached on the two. questions above set out, a third and distinct line of reasoning, on which the trial court may also have proceeded, seems to this court, irrefragable. It is that the clause of the lease that the lessees “agree to sell no beer but that manufactured by Fortune Bros. Brewing Company” is not a condition subsequent, but an independent covenant of the lessees— a covenant not running with the land, and which must find its consideration in and rely for its validity on something else than the mere demise by the lessor of the premises leased. So viewed, it cannot be valid and enforceable either by forfeiture of the lease or otherwise, because it is unilateral and without consideration or mutuality. Contained in a lease which provides that the premises are to be “occupied for saloon and for no other purpose whatever,” it forbids the lessees to use or sell any beer not manufactured by the Fortune company, while there is no stipulation or obligation that the Fortune company shall manufacture beer, or if they do, that they shall sell any of it to the lessees at any price or of any quality. That the clause in question is not a condition subsequent, we feel clear. Nothing could be more applicable to this case than the language of Lord Brougham, then lord chancellor, in Keppell v. Bailey, 2 Mylne & Keen: “It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of the owner.” If it be not a condition subsequent in the demise, it certainly seems that as an independent covenant it should no more be enforceable than were the covenants and agreements held by this court unenforceable in Higbie v. Bust, 112 Ill. App. 218, and by the Appellate Court of the Second District in Schlitz Brewing Company v. Bump, 118 Ill. App. 566. To allow a forfeiture and re-entry for a breach is a method of enforcement as drastic and rigorous as would have been the injunction prayed for and denied in the latter case. On this ground we decide that the court below was right in its judgment, and it is affirmed. Affirmed.