McConnell v. General Roofing Manufacturing Co.

Mr. Presiding Justice Fitch delivered the opinion of the court. In this case there is no controversy as to the essential and material facts. The sole question is whether the uncontradicted and admitted facts are such as to warrant the trial court in directing a verdict in favor of appellee and against appellant. The principle upon which appellee rests his right to recover is that stated in Dean v. Walker, 107 Ill. 540, 545, as follows: “It is a familiar rule, and one well sustained by authority, that where one person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon it.” This doctrine has been recognized and approved in the later cases of Bay v. Williams, 112 Ill. 91; Webster v. Fleming, 178 Ill. 140; Harts v. Emery, 184 Ill. 560; Hartman v. Pistorius, 248 Ill. 568, and in many other cases. Upon this principle, appellee contends that by the express terms of the contracts between appellant and Woodley & Co., coupled with the assent or acquiescence of appellee as lessor of the premises described in the lease, appellant became the tenant of appellee and liable for the rent of the premises for the full term of the lease. Appellant insists (1) that neither of the contracts in evidence contains any express promise to pay rent for the whole term of the lease; (2) that even if such a promise was made, it was made for the benefit of the parties to the contracts, and not for the benefit of appellee, and that the rule above stated is subject to the qualification that in order to enable a third person to recover upon such a promise it must appear that the promise was made directly and primarily for-the benefit of such third person; (3) that in any event, the contracts were purely executory and the rule invoked by appellee has no application to promises contained in contracts of that character; and (4) that appellant’s liability ceased when it assigned the lease to Miller. First. The contract of September 26, 1908, states that Woodley & Co. “has an established office and warehouse ’’upon the premises in question, ‘‘ and a lease thereon expiring May 1, 1914,” and has the equipment and facilities for handling appellant’s goods as well as an extensive trade therein; that appellant desires to avail itself of all these facilities by making the office and warehouse of Woodley & Co. its branch office and warehouse, and making Woodley & Co. its agent in charge thereof; that the lease on such branch office and warehouse “shall be held for the use and benefit” of appellant; that “the entire interest” of Woodley & Co. therein shall be assigned to appellant whenever requested by it; and that appellant “shall be liable for and shall pay all proper and legitimate expenses and obligations arising * * * from the operation and maintenance of the James C. Woodley & Cor Branch, as aforesaid, including- * * * rent.” Under this contract, appellant took possession of the premises described in the lease thus referred to, maintained its branch office and warehouse therein, and for over two years thereafter paid to the lessor the rent stipulated in the lease, all with the full knowledge and consent of such lessor. These facts alone, in our opinion, constituted an assignment of the lease to appellant with the consent of the landlord, and also an agreement on the part of appellant to pay to appellee the rent therein reserved for and during the whole term thereby demised. All question upon this point is removed, however, by the provisions of the contract of May 13,1910; for, while that contract cancels the agency of Woodley & Co., yet by its express terms, as quoted in the statement of facts preceding this opinion, it recognizes and continues in force the obligation of appellant to pay the rent accruing thereafter under the terms of the lease. It is claimed by appellant’s counsel that the language in the contract of May 13, 1910, wherein appellant expressly agreed to ‘ ‘ assume the payment of all rents provided for in said lease,” was conditioned upon the securing by Woodley & Co. of the landlord’s written consent. The language used is: “The first party (appellant) hereby covenanting that upon the second party (Woodley & Co.) securing any consent to the assignment of such lease that may be necessary under the terms of such lease, it will assume,” etc. This language does not require a written consent to the assignment of the lease to be secured. It merely stipulates that “any consent that may be necessary under the terms of the lease” shall be secured. No written-consent was necessary at that time under the terms of the lease, for the reason that the lessor had already assented to the assignment by accepting rent from appellant with knowledge of the facts.- The clause in the lease providing for a written consent of the lessor to an assignment of the lease was for the benefit of the lessor only, and was waived by him long before the second contract was made. After such waiver, it ceased to exist as one of the terms of the lease, at least so far as the assignment to appellant was concerned. Webster v. Nichols, 104 Ill. 160; Willoughby v. Lawrence, 116 Ill. 11. Second. The argument that the contracts of September 26, 1908, and May 13, 1910, were not made primarily for the benefit of appellee, and that for this reason no action can be maintained by appellee upon the promise to pay rent therein contained, while it is ingenious, is unsound, in our opinion. It is true that the principal purpose or main object of these contracts was not merely the payment of rent to appellee. It is equally true, however, that the principal or primary purpose of a warranty deed, containing a clause to the effect that the grantee assumes and agrees to pay a mortgage upon the premises conveyed, is not merely the payment of the incumbrance. The primary object of the deed in such case is the conveyance of the legal title to the property, but the promise to pay the mortgage is .nevertheless, always considered as a promise for the benefit of the mortgagee. Webster v. Fleming, supra. So, in this case, the. primary object of the contracts between appellant and Woodley & Co. was to establish and maintain a branch office for appellant in charge of Woodley & Co. as appellant’s agent, upon the premises described in the lease; but the promise of appellant to pay the rent was quite as directly and primarily for appellee’s benefit as the promise to pay the incumbrance „was for the benefit of the mortgagee in the cases above cited. Third. When Woodley & Co, delivered possession of the leased premises to appellant under the contracts in evidence and appellee accepted appellant as his tenant, appellant had received the consideration for its promise to pay rent to appellee. The contract of Woodley & Co. was then fully performed on its part, so far as its interest in the demised premises was concerned. A distinction is sought to be made by appellant’s counsel from the fact that the phrase during the life of this contract” is frequently used in the contract of September 26,1908. It is said that this phrase tends to show that appellant’s promise to pay rent was obligatory, only while that contract was in force, and that in fact the contract of September 26, 1908, was cancelled by that of May 13, 1910. We do not think the first contract is fairly susceptible of the interpretation thus claimed. But even if it were, the situation of appellant would not be improved, for the reason already stated, viz.: that although the later contract cancels the first one so far as the agency of Woodley & Co. is concerned, nevertheless, by its express terms, the contract of May 13, 1910 recognizes and continues in full force and effect the liability of appellant to pay rent under the lease for the remainder of the term, as one of the matters which were considered and provided for in the settlement agreed upon at that time. Fourth. As to the claim that appellant’s liability ceased when it made an assignment of the lease to Miller, we think it is clear that while that assignment may have had the effect of terminating the privity of estate'then existing between appellant and appellee, it certainly could not have the effect of terminating appellant’s liability under the express contracts with Woodley & Co. to pay the rent accruing thereafter. Springer v. DeWolf, 194 Ill. 218, 224. For the reasons stated, we think there was no error in giving the peremptory instruction, and the judgment of the Municipal Court will be affirmed. Affirmed.