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(146 N.E.)

tions for the exercise of a power, but there 'was an attempt to override the law which prohibited the exercise of the power. The case was erroneously decided, for this error goes to the root of the whole matter. A number of decisions were cited, but none of them sustain the fundamental proposition in the case except another Appellate Court case (Village of Harvey v. Wilson, 78 Ill. App. 544), which was also erroneously decided.

City of East St. Louis v. East St. Louis Gas, Light & Coke Co:, 98 Ill. 415, 38 Am. Rep. 97, does not support the decision. The city of East St. Louis was organized under a special charter, and therefore the question of the application of section 2 of article 7, which has been quoted, could not arise in that case. The action was assumpsit for gas furnished the city during a period of six months under a contract for lighting the streets for a period of thirty years, and the

be done in the way it is done. The doing of the thing in a proper way is a legitimate charge upon the revenues of the municipality, and so when it is done, and is accepted and enjoyed by the municipality, the municipality gets what it had authority to get in a different way, and it should therefore pay for it what it would have had to pay had it got it in the right way. In the present case, however, if we are right in the views we have expressed, there was no power in the commissioners to do the particular thing-namely, remove the dam, abutments, etc.-for the reason that the powers of, the in their report and accompanying plans and profiles, etc., and that work is not within the description therein."

commissioners are limited to the work described

So here, there was no power in the council to do the particular thing because it was not included in the appropriation ordinance, and the power was therefore expressly denied them by statute.

The decision in the Westbrook Case applies

the doctrine of estoppel to the city and then

says:

"If a city which has received the benefits of a contract, not ultra vires, is estopped from interposing a defense based upon the manner in which the contract was made, individual taxpayers cannot, by injunction, restrain the city from paying for or restoring the benefits."

objections made to it were that it was ultra vires because its term of duration operated as an improper abridgment of the legislative or governmental power of the city over the subject, and that it imposed an indebtedness upon the city in excess of the limitation in section 12 of article 9 of the Constitution. The latter objection was held invalid, and as to the former it was held unnecessary to decide it because it applied only to the executory part of the contract and had no application to the executed part; that the legal effect of the contract was only for the lighting of the streets with gas, to be supplied from month to month during the pleasure of the city, for which the city was liable as one of the current, ordinary expenses. There was no question of the power of the city to make a contract for lighting the streets. The only question was as to the period of thirty years. The decision is based upon the principle that although there may be a defect of power in a corporation to make a contract in respect to the term of its duration, only, yet if the contract made by it is not in violation of its charter or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the prom-conferring power to do unauthorized acts ise and in execution of the contract to expend money and perform his part thereof, the corporation is liable on the contract.

Badger v. Inlet Drainage District, 141 Ill. 540, 31 N. E. 170, is another of the cases cited in support of the Westbrook Case, supra, which does not support it. The opinion, after referring to City of East St. Louis v. East St. Louis Gas, Light & Coke Co., supra, and stating the effect of the decision, continues:

"But in such cases there is power to do the particular thing only it is not authorized to

[7] No authority is cited in support of this proposition, but Badger v. Inlet Drainage District, supra, is authority to the contrary, holding that the drainage commissioners could not by their acts and conduct enlarge their powers over the property within the district and estop the owners of the property without their knowledge and consent. However, the question of estoppel does not enter into the case. The city cannot be estopped to dispute the validity of a contract which it had no power to make, for the reason that it has received the consideration. "Every one is presumed to know the extent of the powers of a municipal corporation, and it cannot be estopped to aver its incapacity, which would amount to

simply because it has done them and received the consideration stipulated for. Stevens v. St. Mary's Training School, 144 Ill. 336; Hope v. City of Alton, 214 Ill. 102; May v. City of Chicago, 222 Id. 595; People v. Parker, 231 id. 478." Eastern Illinois Normal School v. City of Charleston, 271 Ill. 602, 111 N. E. 573. L. R. A. 1916D, 991.

The judgment of the Appellate Court will be reversed, and the decree of the circuit court affirmed.

Judgment of Appellate Court reversed.
Decree of circuit court affirmed.

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Where lease gave tenant option for renewal at increased rate, but required him to give notice by registered letter before a date certain of his renewal, time was of the essence, and on his failure to give timely notice his right to renewal was lost, unless the condition was waived by lessor.

2. Appeal and error 1002-Verdict and judgment conclusive on conflicting evidence of lessor's waiver of timely notice of exercise of renewal option.

Verdict and judgment in forcible entry and detainer held conclusive on conflicting evidence as to lessor's oral waiver of timely notice of tenant's intent to exercise renewal privilege. 3. Landlord and tenant 86(1)-"Option to renew" lease held covenant to grant additional term.

An "option to renew" lease is not a present demise of an additional term, but a covenant to grant such term.

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A lessee under a lease containing an option for a renewal of the term, who is in possession at the expiration of his term and who has complied with his contract in every particular, is entitled to a lease authorizing him to continue the possession for the new term, and lessor cannot eject him or institute forcible entry and detainer under Smith-Hurd Rev. St. 1923, c. 57, § 2. 5. Evidence 467-Party to written contract may by parol waive performance of condition

inserted in contract for his benefit.

While a sealed executory contract cannot be modified or changed by parol agreement so as to authorize either party to sue on it, a party to a written contract may, by parol, waive performance of a condition inserted in the contract for his benefit, and such waiver is not a modification or change in the terms of the original agreement.

6. Frauds, statute of 58 (2) Lessee held entitled to claim additional tenancy of five years where lessor orally waived written notice of lessee's intention to renew lease, despite statute.

Action of forcible entry and detainer by Albert Fuchs against George Peterson. Judg. ment for defendant in Municipal Court was affirmed by the Appellate Court (232 Ill. App. 287), and plaintiff brings error. Affirmed.

Brown, Alschuler & Reagh, of Chicago, for plaintiff in error.

Warren Pease, of Chicago (J. Arthur Johnson, of Chicago, of counsel), for defendant in error.

DUNN, J. This writ of error brings before us the case of Albert Fuchs against George Peterson, in which the Appellate Court for the First District affirmed a judg ment of the municipal court of Chicago in favor of the defendant in an action of forcible entry and detainer.

On May 1, 1918, Fuchs leased the premises at 3808 Broadway, in Chicago, to Peterson from that date to April 30, 1923. The lease contained the following clause:

"Lessee to have the first option for a new lease for another term of five years at not over $250 a month and if a registered letter notice is given by March 1, 1923, to this effect."

[1, 2] The notice was not given, but Peterson on April 30, 1923, tendered Fuchs a check for $250, which was returned in a letter from Fuchs' attorney declining to receive it solely for the reason that Peterson was not a tenant, expressly waiving any question of the legality of the tender. The lease gave an option to the lessee for a new lease, at an increased rate not exceeding $250 a month, for a new term of five years upon the condition precedent that the lessee should give notice to that effect by registered letter by March 1, 1923. The time of giving the notice was of the essence of the contract, and upon failure of a compliance with its requirement the right of the lessee to demand a new lease was lost unless the condition was waived by the lessor. Dikeman v. Sunday Creek Coal Co., 184 Ill. 546, 56 N. E. 864. To show such waiver, a lawyer who was advising Peterson testified that he went with Peterson to see Fuchs about the middle of March, 1922, which was more than a year before the expiration of the lease, and said to Fuchs:

"That there may be no misunderstanding as Lessee held entitled to claim additional ten- to what Mr. Peterson is going to do so far as ancy of five years where the lessor orally waived his option or rights under this lease is concernnotice of intention required by provision for re-ed, I want to give you notice now that he has newal in lease as against objection that oral lease for more than one year is invalid under Statute of Frauds, § 2.

Error to Third Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; D. H. Wamsley, Judge.

exercised the right to renew or extend this lease for another period of five years under the terms of the lease, and that makes him have a sixyear lease. Now, Mr. Fuchs, is it necessary for me to give you any further notice? George is here to tell you he is going to go along with this lease and he is going to renew it and exercise that option."

That Fuchs then said:

(146 N.E.)

be after the determination of the lease but

"No, I guess not; no use; no further notice is without right, and it is contended that the necessary."

Peterson also testified as to what occurred, but his testimony is not so clear. It added nothing to the lawyer's testimony and took nothing from it. Fuchs denied that anything was said in the conversation about the renewal of the lease or the necessity of giving a written notice. The verdict of the jury and the judgment must be regarded as conclusive on this question in favor of the defendant in error.

[3] If the lessee's election was properly exercised, he became entitled to have a new lease for a term of five years, beginning May 1, 1923, at $250 a month, on the same terms as the original lease. The effect of the option was not to create a present demise of the additional term beginning May 1, 1923. It amounted to no more than a covenant to grant the term, and for a failure to do so the lessee's only remedy, it was formerly held, would be by bill in equity for a specific performance or an action at law on the agreement. Hunter v. Silvers, 15 Ill. 174; Sutherland v. Goodnow, 108 Ill. 528, 48 Am. Rep. 560. In the former case it was decided in 1853 that such an option for a new lease could not be used as a defense to an action to recover the possession of the premises brought after the expiration of the original term. The statute in regard to forcible entry and detainer at the time of that decision provided that if any person should willfully and without force hold over any lands, tenements, or other possessions after the determination of the time for which such lands, tenements, or possessions were let to him or to the person under whom he claimed, after demand made in writing for possession thereof by the person entitled to such possession. such person should be adjudged guilty of forcible entry and detainer, or forcible detainer, as the case might be. Rev. Stat. 1845, p. 256, § 1. So long as there was not an actual renewal there was no lease re

quiring the lessee to pay rent for the term and conferring on him the legal right to possession. The law in regard to forcible entry and detainer was revised in 1874 to provide that—

"The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided: * Fourth, when any lessee of the lands or tenements, or any person holding under him, holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise." Smith-Hurd Rev. St. 1923, c. 57, § 2.

[4] The revision changed the statute by providing that the holding over of the tenant which would justify the proceeding in forcible entry and detainer must not only

holding over by the defendant in error was not without right but was under his contract for a lease, with which he had complied. This is in accordance with the recognized rule that an action of ejectment, which is a possessory action, cannot be maintained against purchasers in possession under a contract of purchase until they have made default in the performance of the contract. Hutchinson v. Coonley, 209 III. 437, 70 N. E. 686; Sands v. Kagey, 150 Ill. 109, 36 N. E. 956; Stow v. Russell, 36 Ill. 18. A lessee's rights are not different from what they would be under a contract of purchase. While the lessee has not purchased the fee in the premises, he has purchased an estate for years, which carries with it the right of possession for the length of the term as fully as a purchase of the fee. A mere contract for the purchase of land does not authorize the purchaser to enter into possession without the license of the vendor, but where a lessee has an option for the renewal of his lease and is in possession at the expiration of his term, he is in possession under a title rightfully obtained, and having been guilty of no default, but having 'complied with his contract in every particular, he is entitled to a lease authorizing him to continue the possession for the new term. An action of ejectment could not be maintained against him by the lessor; neither can one of forcible entry and detainer.

[5, 6] It is contended that the covenant to renew, not being a present demise, requires a new lease, without which the tenant cannot retain possession, and if the supposed waiv er of written notice and parol election of the lessee entitles him to a new lease, they not only destroy the lessor's right to a written notice but their effect is to create a lease for a period of five years, in violation of section 2 of the Statute of Frauds (SmithHurd Rev. St. 1923, c. 59), which prohibits the bringing of an action to charge any person upon any contract for the sale of any interest in lands for a longer term than one year unless such contract be in writing. It is argued that the waiver of written notice could not result in the creation of a tenancy for an additional five years or of 'any right to claim such tenancy. The right to claim a new lease for five years is contained in the original lease. If the defendant in error had given the written notice which it required, he would, without question, have been entitled to a renewal of his lease, and, in accordance with what we have already said, to the judgment which was rendered in his

favor.

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What was the effect of the waiver? The rule has been established in this state by many decisions that a sealed executory contract cannot be modified or changed by parol

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"Any party has a right to waive a strict compliance with the terms of a contract, and proof of such waiver may consist of acts in pais."

The judgment will be affirmed.
Judgment affirmed.

(315 Ill. 332)

agreement so as to authorize either party to | Moses v. Loomis, 156 Ill. 392, 40 N. E. 952, sue on it. Hume Bros. v. Taylor & Moss, 63 47 Am. St. Rep. 194, was an action of forciIll. 43; Barnett v. Barnes, 73 Ill. 216; Al- ble detainer, in which judgment was renderschuler v. Schiff, 164 Ill. 298, 45 N. E. 424; ed in favor of the defendants. The lease Ryan v. Cooke, 172 Ill. 302, 50 N. E. 213; contained a covenant that the lessees would Starin v. Kraft, 174 III. 120, 50 N. E. 1059; not make any alterations in the premises Lanum v. Harrington, 267 111. 57, 107 N. E. without the written consent of the lessor un826. It is equally well settled that a party der the penalty of forfeiture and damages. to a written contract may by parol waive On the trial evidence was given of alterations performance of a condition which was in- made by the lessees, but it was shown that serted in the contract for his benefit. "A they were made by the oral direction and waiver of a covenant by the party for whose consent of the lessor. The court instructed benefit it is inserted into a written instru- the jury that if they believed from the eviment may be made by parol, and such waiver dence that the lessor verbally authorized the is held not to be a modification or change lessees to make the changes, this was a in the terms of the original agreement." | waiver by the lessor of the provisions of the Becker v. Becker, 250 Ill. 117, 95 N. E. 70, lease in regard to alterations, and as that Ann. Cas. 1912B, 275. In that case, by an provision had been inserted in the lease for antenuptial contract it was provided that the benefit of the lessor he had a right to the husband should have the wife's property waive it. It was held, in affirming the judgin case he survived her, and he covenanted, ment, that there was no error in this instrucamong other things, that she should be en- tion. Vroman v. Darrow, 40 Ill. 171, was titled to the money arising from a policy of also an action at law, being assumpsit on insurance for $200 on his life and that he promissory notes, in which it was said: would keep the policy in force during her life. Soon after the marriage the policy was dropped at the request of the wife, and though the husband desired to take out other insurance, she insisted that he should not do so and she would waive that provision of the contract. After the death of the wife in the lifetime of the husband, it was held that the wife's heirs were bound by her waiver and could not insist upon the forfeiture of the contract because of the husband's failure to perform this covenant. In Kissack v. Bourke, 224 Ill. 352, 79 N. E. 619, the contract of sale required the vendee to deposit the purchase money in a certain bank within 60 days. Before the expiration of the time the parties agreed, verbally, to an extension of the time for completing the contract 30 days, to enable the vendor to have the abstract of the title brought down to date so as to show a good title in him. The money was deposited within the 30 days, but it was objected that the extension agreement was not evidenced in writing and was therefore void because within the statute of frauds. It was held that the vendee had waived a compliance with that provision of the contract by his agreement for an extension and that the proof of the waiver might be made by parol. In Chicago & Eastern Illinois Railroad Co. v. Moran, 187 Ill. 316, 58 N. E. 335, a subcontract for the construction of railroad machinery provided that no other stone than that specified in the contract should be used without the written consent of the company's engineer. On a petition to enforce a mechanic's lien, it was held that this provision was waived by the oral direction of the engineer for the substitution of other stone, which was accepted and used by the company. These cases were in equity.

MINNIE CREEK DRAINAGE DIST. v.
NATION et al. (No. 16383.)

(Supreme Court of Illinois. Feb. 17, 1925.)
I. Drains 15-Lands of owner using natural
drains not subject to annexation to district.

Owner of dominant estate may rightfully collect surface waters and drain them into natural water courses emptying into ditches of to be annexed to the district. a drainage district without subjecting his land

2. Drains 15-To warrant annexation of lands outside district, it is insufficient to show merely that waters from lands ultimately flow through district ditch.

To establish that lands outside of district have been connected with district ditches, it is not sufficient to show that surface waters ultimately flow through district ditches, but it must be shown that an artificial ditch has been constructed which leads into the district ditch or into some previously constructed artificial ditch connecting with the district ditch.

3. Drains 15-Lands outside district held not subject to annexation in absence of showing of benefits.

Owners of lands outside drainage district who, while Laws 1919, p. 442, were in force, and before the amendment of 1923 (Laws 1923, p. 335), improved natural water courses on their own lands to collect and carry off excess waters, which resulted in increasing the amount of water carried by drainage district ditch, held not subject to have lands annexed to

(146 N.E.)

the district unless benefit from district work | south boundary line in the vicinity of the be shown.

4. Statutes 263-Retroactive intent must clearly appear.

Intention to give statute retroactive effect must clearly appear from the act.

5. Drains 15-Burden held on drainage district to show benefits to lands sought to be

annexed.

Prior to the 1923 amendment of Drainage Laws (Laws 1923, p. 335), and while Laws 1919, p. 442, were effective, the burden was on a drainage district seeking to annex outside lands to prove, not only that such lands were connected with the drainage district, but that they were actually benefited by the work of

such district.

Appeal from Kankakee County Court; Henry F. Ruel, Judge.

lands here in question was the center of the east and west highway between sections 26 and 35 in township 30. The Minnie Creek drainage district main ditch extended east and west through the center of section 26. One of the ditches of the district, and with which connection is here alleged to have been made, is known as lateral C. It extends from the main ditch, near the northeast corner of the southeast quarter of section 26, in a southwesterly direction to a point a few rods east of the southwest corner of that quarter section, where it crosses the highway on the south boundary of the district and extends southerly for about 40 rods into the north half of the northeast quarter of section 35, owned by Kitty Elliott, wife of one of the appellants, and it was stipulated that this particular 80 acres had always been assessed by the district for benefits and such assessments had been paid by the owners thereof. Seemingly no work has been done on lateral C since its construction.

Proceedings by the Minnie Creek Drainage District for the annexation of lands owned by W. O. Nation and others. From an order and judgment annexing the lands to the Drainage District, the owners appeal. Re-involved in this appeal are in section 35 in versed and remanded.

A. F. Goodyear, of Watseka, and E. A. Marcotte and John H. Beckers, both of Kankakee, for appellants.

All of the lands

Otto township. Frank W. Elliott owns 80 acres, the south half of the northeast quarter; W. O. Nation owns 240 acres, the southeast quarter and the east half of the south

W. R. Hunter and Eva L. Minor, both of west quarter; John Schrader owns 160 acres. Kankakee, for appellee.

FARMER, J. Minnie Creek drainage district of Kankakee county, through its commissioners, on May 5, 1924, filed in the county court of Kankakee county its written complaint under section 58 of the Levee Act (Smith-Hurd Rev. St. 1923, c. 42, § 56), setting forth that certain owners of property located outside the district, including appellants, Frank W. Elliott, W. O. Nation, and John Schrader, had since the organization of the district made connection with the ditches and drains of the district, and praying that the lands described therein be annexed thereto and assessed as other lands in the district. Appellants and other property owners appeared and filed answers to the complaint, denying that they had connected their respective lands with any drain or ditch of the district, denying that their lands, or any part thereof, are or will be benefited by the work done or to be done by the district, and further questioning the constitutionality of section 58 of the Levee Act. A hearing was had before the court, who, after making a personal examination of the lands sought to be annexed, entered an order finding the facts substantially as alleged in the complaint and annexing the lands to the district. From that order and judgment appellants heretofore named have prosecuted this appeal.

Minnie Creek drainage district was organized under the Levee Act about 1893, and its

the northwest quarter. The latter quarter
section lies immediately south of the east
and west highway, which, as stated, is the
south boundary line of the district. The
evidence shows that for many years prior to
the organization of the drainage district a
ditch extended along the south side of this
highway and a culvert crossed the road sev-
eral hundred feet west of where lateral C
now crosses it. The fall of the land is such
that prior to the digging of any ditches by
the drainage district the water on the east-
erly portion flowed east and north into the
road ditch and thence under the culvert into
the flat lands north of the road. The water
on the westerly portion flowed northwesterly
through a ditch which began near the south
line of the quarter section and emptied into
the roadway ditch near the northwest corner
of the land. The drainage of the water from
this quarter section was in a northerly di-
rection across the lower lands, and at the
present time, during high-water stages, the
water runs north over the highway.
main ditch of Minnie Creek drainage dis-
trict, which is a half mile north of Schra-
der's north line, was constructed about one-
half mile south of the natural water course
Thereafter the outlet to
of Minnie creek.
Schrader's ditch near his northwest corner
became practically useless, as the work done
by Minnie Creek drainage district caused the
water to back up from the north toward his
Schrader's brother owned the 160
land.
acres at that time, and, in order to drain his

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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