Bartzen v. Schroeder

Mr. Justice Freeman delivered the opinion of the court. It is contended in behalf of défendant that the plaintiff cannot maintain an action in the Municipal Court for the possession of the premises and in the same action recover for the rent due. The claim seems to be that the two remedies were inconsistent, that the plaintiff should have been compelled to elect which remedy to pursue and that the election of one would be a waiver of the other. This contention cannot be sustained in view of the provision of the Municipal Court Act as follows: “In forcible detainer cases the plaintiff may unite with his claim for possession of the property any claim for rent or damages for withholding possession of the same.” Par. 3 of sec. 311, chap. 37, R, S. This suit was brought before the end of the month of April, but by the terms of the lease the rent was due and payable in advance on the first of that month. In Schumann Piano Co. v. Mark, 208 Ill. 282-288, cited by defendant’s attorney, it is said that “a pending action for use and occupation will not invalidate a notice of the termination of the lease, for the landlord may only recover in his action for rent due at the time of the expiration of the notice, although he may claim rent to a later period.” That was a suit in forcible entry and detainer alone and was brought before the passage of the Municipal Court Act. It is argued that the plaintiff waived the forfeiture of the lease, and defendant testifies that plaintiff told him to “let the rent go until the lease was settled,” and that this was after the service of the five day notice. It is claimed that this is not denied by the plaintiff. We are of opinion, however, that the testimony for the plaintiff is inconsistent with defendant’s claim in this respect, and that the jury was amply justified by the evidence as a whole in finding against defendant’s contention. It is further urged that inasmuch as the plaintiff had leased the premises from May 1, 1908, to a third party he cannot maintain an action of forcible detainer, because it is said he was not entitled to possession of the premises. That new lease, however, was for a term beginning May 1,1908. This suit was begun on the 29th of April, 1908, at which time the right of possession of the premises was still in the plaintiff. Finding no error in the record the judgment will be affirmed. Affirmed.