Brand v. Svenson

Mr. Justice Duncan delivered the opinion of the court. It is argued by appellee’s counsel that the covenant in the lease in question to allow the landlord to enter and make repairs and alterations, while affirmative in form, is negative in substance, as the lessee can only allow the landlord to enter by desisting’from interference with Ms entrance. It is, therefore, insisted that in respect of such covenants the remedy by injunction is synonymous with the remedy of specific performance, and that the same rules aré applicable to each. It is the settled law that in respect of purely express negative covenants annexed to or contained in contracts or leases, courts of equity will frequently interpose by injunction, and indirectly enforce specific performance thereof by proMbiting their breach. This remedy is given in many such cases without regard to the question of whether or not substantial injury will ensue and for wMch there may be a complete remedy at law. When such an express covenant is made, it has been held that the lessee is bound to refrain, and the lessor is not reqmred to submit to the opimons of others as to whether he will or will not suffer substantial injury. Consolidated Coal Co. v. Schmisseur, 135 Ill. 371. It is also said in the same case that cases are much more rare where a court of eqrnty has interfered to prevent the breach of a negative covenant which is implied from a positive stipulation. There can be no doubt that injunction is the appropriate remedy in nearly all the cases where the contract is negative in form, requiring the parties to refrain from doing certain things, and particularly when the contract and the limitations relate to an interest or a right in real estate. It is also true that courts of equity have in a number of instances, where an injunction is otherwise proper, enjoined acts in violation of implied negative covenants in contracts wherein the express covenants were in form affirmative, as in this case. It is a general rule, however, that it is necessary to show affirmatively that damages are not an adequate remedy, even though the contract is negative in terms and in substance. 22 Cyclopedia of Law and Procedure, 846, and cases cited; 2 High on Injunctions, Secs. 1135 and 1136; Carlson v. Koerner, 226 Ill. 15. What is said in Carlson v. Koerner, supra, a case very similar to the one at bar, is applicable to and controlling in this case, viz: “The terms here used are not negative and can only become so by implication * * *. There is no negative covenant within the rule laid down by the authorities, and hence equity had no jurisdiction without proof of irreparable injury.” There is no affirmative proof in this record that appellee has sustained irreparable injury, but on the contrary it clearly appears that he has complete and adequate remedies at law. TEe eighth section of said lease provides,.that should the lessee violate any covenants or conditions of the lease that the lessor may at his option without notice to lessee, at once declare the tenancy terminated and that a sum of money equal to the amount of rent which would accrue to the end of the lease shall at the option of the lessor be payable as liquidated damages which lessee agrees to pay at once on the termination of the lease so authorized, the lessee to be entitled in such case to all rents received by the lessor for rental to other tenants during remainder of the term, less expenses, in no case to exceed said liquidated damages, with interest. The tenth section thereof provides that after service of notice or commencement of suit, or final judgment for possession of premises, lessor may receive and collect rent due, and payment thereof shall not affect said notice, suit or judgment. It also further provides that the lessee shall pay all reasonable fees and expenses incurred by lessor in enforcing covenants of the lease, and that all rights and remedies of the lessor under the lease shall be cumulative and none shall be exclusive of any other rights allowed by law. Under the foregoing provisions it clearly appears that appellee by the action of forcible detainer could have regained possession of the premises for any breach of the covenants, and without losing his right to collect a sum equal to all the rent that would have accrued to the end of the term after regaining such possession. There was, therefore, no equitable grounds shown for the granting of the injunction in this case, and the order of the court appealed from is reversed and the injunction dissolved. Order reversed and injunction dissolved.