Byrne v. McCarthy

Mr. Justice McSurely delivered the opinion of the court. Plaintiff, bringing an action of forcible detainer, upon trial by the court had judgment for possession, from which defendant appeals. The evidence was that in March, 1919, the owner of the premises in question, Walter S.- Bogle, leased them to defendant for a term described in the written lease as from “the first day of May, A. D. 1919, until the first day of May, A. D. 1920.” There was also provision giving either party the right to terminate the lease on said last mentioned day upon giving the other party sixty days’ written notice, otherwise the lease to continue from year to year until terminated by like notice. February 3, 1920, a written notice was sent by tbe lessor wbicb advised defendant tbat tbe lease of tbe apartment “expires April 30, 1920, and will not be renewed.’.’ Tbe following March tbe owner made a written lease of said premises to plaintiff in this case, for a term beginning May 1, 1920, expiring April 30, 1921. Tbe first point made by defendant’s counsel is tbat tbe notice is deficient and insufficient in tbat it advised tbat tbe lease expired “April 30, 1920,” whereas tbe term demised according to tbe written lease was “until tbe first day of May, 1920.” It is argued tbat as tbe term did not expire until May 1, tbe notice tbat it expired April 30 was ineffective. Under many decisions tbe word “until” is a word of exclusion; tbe words “until May 1, 1920,’.’ mean tbat tbe term would expire at twelve o’clock at night on April 30, so tbat tbe notice specifying April 30 as tbe date of expiration was proper. 24 Cyc. 960; People v. Robertson, 39 Barb. (N. Y.) 9; Buchanan v. Whitman, 151 N. Y. 253; Vanatta v. Brewer, 32 N. J. Eq. 268; Croco v. Hille, 66 Kan. 512, 72 Pac. 208; Webster v. French, 12 Ill. 302; Words &s Phrases, vol. 8, p. 7217. Furthermore, if tbe first day of May, 1920, was included in tbe term, the-lessee would be liable for an instalment of rent on that day under tbe provision of tbe lease calling for payment “upon tbe first day of each and every succeeding month.” This was not tbe contract of the parties, and May 1, 1920, should be excluded from tbe term of tbe lease. Tbe notice is also criticised as indicating no intention on tbe part of tbe lessor to terminate tbe lease, hence it continued as a tenancy from year to year. We are of tbe opinion tbe notice sufficiently indicated an intention to terminate. Tbe words, ‘‘ expires April 30, 1920, and will not be renewed,” could convey no other meaning except that the lessor wished to terminate the léase on that date. Some point is attempted with reference to\the authority of the agent to sign the notice of termination, hut no objection on this ground was made to its introduction in evidence upon the trial, aüd it is too late to make the objection for the first time in this court. Fowler v. Chicago Rys. Co., 207 Ill. App. 430. We see no sufficient reason to reverse the judgment and it is affirmed. Affirmed. Holdom, P. J., and Dever, J., concur.