Cook County IL Archives Court.....West, Side Auction House Co 1900
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Source: Reports Of Cases At Law And In Chancery
Written: 1900

The West Side Auction House Company 

v.

The Connecticut Mutual Life Insurance Company.

Opinion filed June 21, 1900.

1. Corporations—when lease by corporation is sufficiently executed. A lease 
purporting to be the deed of a corporation is sufficiently executed if the 
corporate seal is affixed and properly attested by the secretary, and parties 
objecting thereto have the burden of proving that it was not so executed.

2. Variance—what not a variance between declaration and lease. A declaration 
on a lease between Corporations is not variant from the lease because it omits 
the words "of Hartford" after the name of the lessor, and "of the city of 
Chicago, county of Cook and State of Illinois," after that of the lessee.

3. Same—alleged variance must be pointed out in trial court. An alleged 
variance can only be taken advantage of upon the trial by a timely objection 
specifically pointing it out, so that it may be avoided by amendment, if 
necessary.

4. Evidence—when proof of existence of corporation is sufficient. The 
execution and delivery of a lease by defendant to plaintiff as a corporation 
is sufficient evidence of plaintiff's corporate existence, notwithstanding 
defendant's pleas of nul tiel corporation and non est factum, where the 
evidence shows the execution of the lease by defendant and there is no 
evidence to overcome plaintiff's prima facie corporate existence.

5. Landlord and tenant—landlord's taking possession after abandonment is not a 
waiver of lease. Upon abandonment of premises by the lessee it is the right 
and duty of the lessor to take charge of the property, preserve it from 
injury, and, if possible, re-rent it and thus reduce the amount for which the 
lessee is liable.

West Side Auction House v. Conn, Ins. Co. 85 Ill. App. 497, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on 
appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, 
Judge, presiding.

W. A. Phelps, and J. B. Muir, for appellant.

E. Parmalee Prentice, for appellee.

Mr. Justice Wilkin delivered the opinion of the court: 

This is an action in assumpsit by appellee against appellant, begun in the 
superior court of Cook county, to recover rent, at $200 per month, under a 
lease held by appellant, as tenant of appellee, for certain premises in 
Chicago. Appellant on the last of October, 1895,—seven months before the 
expiration of the term,—sent to appellee the keys of the building, accompanied 
by the following letter:

"Isham & Prentice, City: "Chicago, October 30, 1895.

"Gentlemen—I return you herewith by bearer the keys (seven) of No. 209 and 211 
West Madison street, Chicago, city. The premises are in such bad condition, 
and as you refuse to make them tenable I cannot make any use of them. I might 
add, when you rent the building I shall look for a reasonable compensation for 
the fixtures, etc., which are mine.

"Yours truly, John J. Walls."

To this letter the appellee, by its attorney, on the same day replied, as 
follows:

"Chicago, October 30, 1895. 
"The West Side Auction House Co., 209 West Madison St., Chicago:

"Gentlemen—Messrs. Isham & Prentice have referred to me the letter addressed 
by Mr. Walls to them, enclosing keys to property rented to your company by the 
Connecticut Mutual Life Insurance Company. We can, if you desire, hold the 
keys for you, but they are at your service, and we cannot consent to any 
cancellation of the lease, if that is intended by your note. Among other 
reasons, we have no authority to consent to such cancellation. I note from Mr. 
Walls' statement that you have left certain fixtures on the leased property. 
By this I judge that you are still in possession, although you have given the 
keys to us. We shall assume no responsibility for your property at all. 
E. Parmalee Prentice."

Upon appellant failing to pay the rent for the months of October and November, 
1895, appellee brought a suit therefor and recovered a judgment for $400. On 
April 21, 1897, appellee begun this suit to recover the rent, with interest, 
for the remaining five months of the term.

The declaration consists of two special counts (the first upon the lease, the 
second for use and occupation,) and the common counts. To these counts the 
defendant pleaded the general issue; non est factum verified; surrender, of 
the premises and acceptance by the defendant; that defendant did not use and 
occupy the premises described in the second count; and lastly, nul tiel 
corporation. Issues were formed on these pleas and a trial was had before the 
court and jury, resulting in a verdict, under the direction of the court, for 
the plaintiff for $1127.90. Judgment was rendered for that amount, and an 
appeal was taken to the Appellate Court for the First District. Judgment was 
there affirmed, and the cause is brought here upon further appeal.

Three grounds of reversal are named by counsel for appellant: First, that the 
trial court erred in instructing the jury to find for the plaintiff; second, 
that it improperly admitted the lease sued on in evidence; and third, that it 
erred in holding that the former suit upon the lease was res judicata in this 
case. The last question, as shown by the abstract, is not an issue in the case.

The first ground of reversal in fact includes the second, because if the lease 
was improperly admitted, plaintiff failed to make out its case, without any 
reference to the defenses.

Upon the offer of the lease defendant objected to its introduction in 
evidence,—first, "because it does not purport to be executed by the West Side 
Auction House Company, the defendant; it is void, signed only by John J. 
Walls; second, it is variant from the instrument declared on, as described in 
the declaration; it is not the instrument described in the declaration." These 
objections were each overruled and exceptions taken.

The lease is signed "The Connecticut Mutual Life Insurance Company, by John D. 
Parker, Assistant Secretary," with seal; and the signature of the second party 
is, "Jno. J.Walls, Sec'y," and on the margin, "W. S. A. H. Co., Seal." It was 
not denied,—in fact it is stated in the abstract,—that this was the corporate 
seal of the second party to the contract. What is termed the "party clause" in 
the lease describes the first party as "The Connecticut Mutual Life Insurance 
Company of Hartford," and the second party as "The West Side Auction House 
Company of the city of Chicago, county of Cook and State of Illinois." The 
declaration describes the insurance company by the name signed to the lease 
and the defendant as the West Side Auction House Company. We said in Wood v. 
Whelen, 93 Ill. 153, the question being whether a mortgage had been executed 
by a corporation (p. 162): "The execution of a mortgage, under the seal of the 
company, regular on its face, by the properly constituted officers, is prima 
facie evidence it was executed by the authority of the corporation, and 
parties objecting take on themselves the burden of proving it was not so 
executed." In Indianapolis and St. Louis Railroad Co. v. Morganstern, 103 Ill. 
149, in considering the execution of a bond, we again said: "The bond appears 
to have been executed under the seal of the corporation. This raises the 
presumption that the person using the seal had authority to do so. There is no 
attempt to impeach the authority, nor is it claimed the seal of the 
corporation has been improperly used." It is a general rule that an instrument 
purporting to be the deed of a corporation is sufficiently executed when the 
corporate seal is affixed and properly attested by the secretary. There is no 
dispute of fact in regard to the execution of the lease in question, and it 
was simply for the court to determine, as a matter of law, whether, on its 
face, it was the contract of the defendant, and that question we have no doubt 
it decided correctly. It also appears, without contradiction, that the 
defendant occupied the premises under this lease during the months of May, 
June, July, August and September, 1895, and paid the rent according to the 
terms of the lease. There was here a clear recognition and ratification of the 
lease, if any such recognition or ratification had been necessary.

The contention that there is a variance between the lease as offered in 
evidence, and the declaration, is based upon the fact that the declaration 
omits the additional words "of Hartford" and "of the city of Chicago, county 
of Cook and State of Illinois." We do not regard these additions to the title 
of plaintiff and defendant as at all material in their name or description, 
and especially since the objection on the ground of variance did not 
specifically point out wherein the variance exists. A variance can only be 
taken advantage of upon the trial by a timely objection specifically pointing 
it out, so that it may be avoided by proper amendment. But, as before stated, 
the alleged variance does not exist.

It is also contended that the plaintiff failed to make out a case under the 
issues, because it made no proof of its corporate existence in answer to the 
plea nul tiel corporation. The rule is well settled that the execution and 
delivery of an instrument to a corporation, as such, is prima facie evidence 
of the existence of the corporation, and no proof thereof is necessary until 
such proof is rebutted. (Brown v. Mortgage Co. 110 Ill. 235; Hudson v. Green 
Hill Seminary, 113 id. 618; Ward v. Minnesota and Northwestern Railroad Go. 
119 id. 287.) Here the lease shows upon its face that it is executed by the 
insurance company as a corporation, and the defendant, by contracting with it 
as such, admits its corporate existence. But it is said this rule only applies 
where the execution of the contract is admitted, whereas here there was the 
plea of non est factum. We do not regard this attempted distinction as 
existing. As we have already seen, the proof shows that the contract was 
entered into and the effect of the contract so proved is the same as though 
its execution had been admitted.

We think the plaintiff made a prima facie case entitling it to recover the 
rent claimed for the unexpired term.

Did the evidence fairly tend to prove the defense relied upon by the defendant—
that is, that the premises had been surrendered prior to the months for which 
rent is here claimed? If it did not, then, under repeated decisions of this 
court, it was not error for the trial judge to instruct the jury to find for 
the plaintiff. If there is any merit in this appeal it arises on this branch 
of the case. On the 30th of October, 1895, the lessee sent to the agents of 
the lessor the keys of the building, with the letter above mentioned, and on 
the same day received the reply refusing to accept the surrender of the lease. 
It is clear that there was here no consent upon the part of the landlord to 
accept a surrender of the premises. In fact, there Was not an unconditional 
offer to surrender, but only an offer with a claim that if a surrender be 
accepted and the building re-rented the lessee should have a reasonable 
compensation for the fixtures which it claimed, in the building, and which the 
evidence shows never were removed.

It is said, however, that after the surrender of the keys the lessor put up 
signs to rent the property, and that it cleaned out the building. Upon the 
abandonment of the leased premises by the tenant it was the right and the duty 
of the landlord to take charge of the premises, preserve them from injury, 
and, if it could, re-rent them, thus reducing the damages for which the lessee 
was liable.

We find no competent evidence in this record legally tending to prove that 
there was a mutual agreement between the parties for the canceling of the 
lease, and there is no pretense of a right on the part of the lessee to 
surrender the premises and cancel the lease without the consent of the lessor. 
There being no evidence fairly tending to prove the defenses offered, the 
peremptory instruction was properly given.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Additional Comments:
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme 
Court of Illinois, Volume 186, Containing Cases in which Opinions were filed 
in June and October, 1900, and Cases in which Rehearings were denied at the 
October term, 1900. Isaac Newton Phillips, Reporter. Springfield: 1900.

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