Page images

in said lease, providing for right of re-entry after lessee's default without forfeiting the lease or the rights of the lessor thereunder.” Thereafter, on February 2, 1909, the defendant in error brought an action of forcible detainer in the municipal court of Chicago against Jessie Melick, individually and as administratrix of the estate of Josephine King, to recover possession of the premises and $300 rent alleged to be due. The suit was dismissed as to Jessie Melick individually and judgment was rendered against her as administratrix for possession of the premises and for $300 rent, to be paid in due course of administration. That judgment was affirmed by the Appellate Court for the First District upon an appeal prosecuted by Jessie Melick as administratrix. (Central Investment Co. v. Melick, 162 Ill. App. 474.) In July, 1909, Jessie Melick left the premises, and, after making certain repairs, the defendant in error, on December 29, 1909, leased the premises to J. D. O'Neill for a term beginning January 1, 1910, and ending April 30, 1912, the rent for the first four months under this lease being fixed at $50 per month and for the remainder of the term at $70 per month. The judgment in this case is for rent from October 31, 1908, to October 31, 1910, after deducting the amount received from O'Neill under the terms of his lease, and also includes certain sums expended by the defendant in error for attorney fees and court costs in the forcible detainer suit and in prosecuting this claim in the probate court.

It was shown upon the hearing in the circuit court that defendant in error is a corporation organized under the laws of the State of New Jersey, for the purpose, among others enumerated in its charter, of renting buildings and re-renting or sub-letting the same or parts thereof. Other powers enumerated in its charter are, to build houses and other buildings, structures and improvements and other mechanical business; to do a general contracting and building business; to do a general collection business and to act as promoter of all kinds of lawful enterprises. It was also shown that on September 28, 1897, a certificate was issued to defendant in error by the Secretary of State of Illinois, to the effect that it had filed evidence of its incorporation under the laws of the State of New Jersey and is entitled to the rights and privileges granted foreign corporations.

The grounds relied upon by plaintiff in error for reversal are, first, that the lease of October 14, 1907, upon

which this judgment is based, is void, because the laws of this Stațe do not permit a corporation to engage in the business of renting buildings for the purpose of re-renting or subletting the same or parts thereof; and second, that said lease, if valid, was terminated on February 2, 1909, by the act of the defendant in error in bringing the forcible detainer suit against the plaintiff in error on that date.

In answer to the first point, the defendant in error says that the plaintiff in error is estopped from questioning its right to sue or recover under the lease by reason of the judgment for $300 obtained in the municipal court. That judgment, and also the judgment affirming it in the Appellate Court, together with the Appellate Court opinion, were introduced in evidence. In the case in the municipal court the parties were the same, the same lease was involved as here, and it appears that the validity of the lease was there attacked upon the same grounds as are here urged against it. The general rule is, that where a second action is based upon the same claim and demand as a former suit, the judgment in the former suit, if rendered upon the merits, is an absolute bar to the subsequent action, and as to such claim concludes both parties and privies, not only as to every ground of recovery or defense actually presented, but also as to every ground which might have been presented in the former suit. (Anderson v. West Chicago Street Railroad Co. 200 Ill. 329; Marie M. E. Church v. Trinity Church, 253 id. 21.) In Louisville, New Albany and Chicago Railway Co. v. Carson, 169 Ill. 247, it was held that a judgment for installments of rent which established the validity of the lease under which the installments accrued is conclusive in a suit between the same parties for subsequent installments as to all questions concerning the validity of the lease which were or might have been raised and determined in the former suit. To the same effect is Marshall v. Grosse Clothing Co. 184 Ill. 421. A determination of the questions presented in the suit in the municipal court necessarily involved the validity of the lease in question, and this record discloses that that question was actually presented and determined. The question of the validity of the lease is therefore res judicata and cannot be considered in this case.

Plaintiff in error contends that by claiming on the lease in the probate court defendant in error abandoned its judgment claim, and therefore all defenses to the lease were opened. As plaintiff in error is mistaken in the premises stated in this proposition it is not necessary to comment upon the correctness of the deduction drawn. The claim filed in the probate court expressly stated that this $300 item was for a judgment recovered in the municipal court which was later affirmed in the Appellate Court.

The case of Grommes v. St. Paul Trust Co. 147 Ill. 634, is decisive of the second point raised. There was involved in that case a lease with practically the same provisions as those contained in the third clause of the lease here in question, and it was there said: “There is nothing illegal or improper in an agreement that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding there has been a re-entry for default, and if the parties choose to make such an agreement we see no reason why it should not be held to be valid as against both the tenant and his sureties. not be strictly accurate or correct to call the money to be paid after re-entry rent, or to treat the lease as in force



It may

after a re-entry. But the parties have a right to fix the amount of the rent to accrue according to the terms of the lease as the amount of damages to be paid by the tenant in case of a breach of his covenants. It can make but little practical difference whether the sum agreed to be paid be called rent or damages. It may be regarded as damages for the purposes of this suit.Hall v. Gould, 13 N. Y. 127; Underhill v. Collins, 132 id. 269." Whether, as the plaintiff in error contends, by bringing its action of forcible detainer under our statute the defendant in error elected to determine the lease is unimportant under the holding in that case, as the amounts accruing after the reentry are more properly regarded as the damages agreed upon between the parties in case of a breach of the covenants of the lease. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mary BELLE Patton, Plaintiff in Error, vs. JAMES W.

GULLETT et al. Defendants in Error.

Opinion filed April 22, 1915.

EVIDENCEwhen complainants are incompetent to testify to an agreement by testatrix not to make a will. Daughters of a testatrix who file a bill as heirs against the other children as devisees under the will, seeking to establish an agreement by the testatrix with her children not to make a will, are incompetent, under section 2 of the Evidence act, to testify as to the making of the agreement, for though the titles of both complainants and defendants come from the same source they are inconsistent. (Pigg v. Carroll, 89 I11. 205, and Mueller v. Rebhan, 94 id. 142, explained.)

WRIT OF ERROR to the Circuit Court of Hardin county; the Hon. W. H. GREEN, Judge, presiding.

CHARLES DURFEE, and John C. OXFORD, for plaintiff in error.

John Q. A. LEDBETTER, and JAMES A. WATSON, for defendants in error.

Mr. Justice Dunn delivered the opinion of the court:

This writ of error is prosecuted by Mary Belle Patton to reverse a decree of the circuit court of Hardin county which dismissed her bill of complaint.

Waitman W. Gullett died on April 22, 1909, leaving a widow, Emma Gullett, and ten children, of whom plaintiff in error is one. By his will he gave five dollars to each of his children and all the rest of his estate to his widow. The bill alleges that the plaintiff in error employed counsel for the purpose of resisting the probate of the will and contesting its validity, and that on July 1, 1909, in consideration that the complainant would abandon such purpose and permit the will to be probated without objection and the widow to have during her life the use and control of the property devised to her, Emma Gullett, the widow, verbally agreed, in the presence of all the other children, who agreed to abide by such agreement, that she would not sell the real estate and would make no will concerning the property passing to her under the will of her husband. Thereupon the plaintiff in error abandoned her opposition to the probate of the will, it was admitted to probate without objection, and the widow remained in possession, use and control of the property devised to her until her deat Nevertheless, on November 29, 1910, the widow made her will, whereby she gave one dollar each to plaintiff in error and two of her sisters and divided the rest of her property among her seven other children. Emma Gullett died on April 23, 1913, and the bill alleges that she left property of the value of $15,000, which she had received under her husband's will. All the heirs of Emma Gullett, who were the brothers and sisters of the plaintiff in error, as well as the executors of her will, were made defendants to the bill. An answer was filed, which, among other things, denied

« PreviousContinue »