contract of February 14, 1919, was void, and | Association, all acting in good faith to remnot only is every one presumed to have edy the conditions. In view of the facts that known that the city and all of its officers the same conditions had been the subject of were prohibited from making the contract, public discussion for five or six years before but the writing itself shows that the parties February 14, 1919, and that, as shown by its to it had this prohibition actually in mind answer, the city, after the lapse of nearly at the time, for the writing expressly men- three years more, abandoned the intention of tions the inability of the city to enter into making use of the work in installing a new a contract. This instrument was confessedly sewer system, it seems that the emergency void, and being void was incapable of rati- was not so urgent and pressing that time fication. The writing of July 1, 1919, which might not have been taken to comply with purported expressly to ratify, approve, and the requirements of the law for authorizing confirm the contract of February 14, 1919, an additional appropriation. However, the had no power to give life and validity to that requirements were not complied with and 20 void act. The instrument of July 1 was not valid contract was entered into. itself a contract, and if it were, it could have [6] The appellee insists that the appellants no effect beyond the appropriation of that are estopped to question the legality of the year, $5,000, for the prohibition against in- contracts. His claim is based on Westbrook curring any expense unless an appropriation v. Middlecoff, 99 Ill. App. 327. In that case concerning such expense should have been the city council of the city of Paxton, withpreviously made was a limitation upon the out having made any appropriation for the powers of all the officers and departments purpose, through a committee entered into of the corporation, of which all the parties a contract for the erection of a city buildhad notice and which they could not disre- ing, which was erected and partly paid for, gard. When the council appropriated $5,000 leaving a balance of $920.86 due. Middlecoff, for the new sewer system, that was the limit the mayor, proposed to advance the money of the expense which any of the officers or to pay this balance, to be repaid out of the departments of the city could incur for that annual appropriation for the next year. The object, and the appellee had notice of this buil ng was completed and accepted and limit of their power. Even had a new con- occupied by the city, and the council aftertract been entered into on July 1, the amount ward by a resolution directed the issue of a of it could not have exceeded $5,000, and the warrant to Middlecoff, after the adoption of record shows that the appellee has already the appropriation ordinance of the next year, received $8,000. In Coles County v. Messer, for the amount advanced by him. A taxpay. 195 111. 540, 63 N. E. 391 (a suit by a sheriff er's bill filed to enjoin the issue of this order to recover from the county expenses incur- and the payment of this amount was disred by him in the performance of the duties missed by the circuit court, and the Appel. of his office), it is said:

late Court affirmed the decree, on the ground "The county cannot be made liable for any that the city having received the benefits of expenditure unless the county board has fixed the contract was estopped from setting up the a sum for expenses, and the aggregate expenses irregular exercise of the power to contract are necessary and within the amount. The fact the debt. It was said in the opinion: that nothing has ever been fixed expressly for

"Where the statute authorizes a municipal expenses does not authorize a recovery for ex- corporation to exercise à certain power, but penses any more than the failure to fix com- specifically regulates the mode in which it may pensation would authorize a recovery for rea- be exercised, an attempt on the part of the sonable compensation. If a county officer can municipal officers to override the regulations recover from the county for expenses where no and exercise it in another manner will be resum has been fixed or allowed for such ex- strained; but when the officers have so acted, penses, he can recover any amount, within the and the municipality has received the benefits fees collected, which he necessarily. expends, of a contract thus irregularly entered into, it and the provision of the Constitution under is estopped from setting up the irregular ex. which the board has the absolute power to fix ercise of the power when called upon to pay and limit expenses would be nugatory and of for what it has received." no avail.”

The opinion is based on the theory that The same principle applies here. In the the statute' authorized the city to contract absence of an appropriation there was no for the erection of the building, and, as we liability, and it should be held that there have seen, the statute expressly prohibited was a liability, the provision which the stat- the city from making the contract. Section ute intended for the protection of taxpayers 2 of article 7 of the Cities and Villages Act would be nugatory and of no avail.

is not a regulation of the mode in which the The appellee contends that there was a city may exercise its power to contract, but grave emergency requiring prompt action to is a denial of the power and a prohibition of avoid public calamity, and that to prevent making any contract unless an appropriation an epidemic the contract was entered into shall have been previously made for the purwith the approval of the state health depart- pose. There was no attempt on the part of ment, the city council and the Commercial | the municipal officers to override the regula

(146 N.E.) tions for the exercise of a power, but there, be done in the way it is done. The doing of 'was an attempt to override the law which the thing in a proper way is a legitimate charge prohibited the exercise of the power. The upon the revenues of the municipality, and so case was erroneously decided, for this error when it is done, and is accepted and enjoyed goes to the root of the whole matter. A num. it had authority to get in a different way, and

by the municipality, the municipality gets what ber of decisions were cited, but none of them it should therefore pay for it what it would sustain the fundamental pr position in the have had to pay had it got it in the right way. case except another Appellate Court case In the present case, however, if we are right (Village of Harvey v. Wilson, 78 Ill. App. in the views we have expressed, there was no 544), which was also erroneously decided. power in the commissioners to do the partic

City of East St. Louis v. East St. Louis ular thing-namely, remove the dam, abutments, Gas, Light & Coke Co:, 98 I11. 415, 38 Am. etc.—for the reason that the powers of, the

commissioners are limited to the work described Rep. 97, does not support the decision. The in their report and accompanying plans and city of East St. Louis was organized under a profiles, etc., and that work is not within the special charter, and therefore the question

description therein." of the application of section 2 of article 7, which has been quoted, could not arise in

So here, there was no power in the counthat case.

The action was assumpsit for cil to do the particular thing because it was gas furnished the city during a period of not included in the appropriation ordinance, six months under a contract for lighting the and the power was therefore expressly destreets for a period of thirty years, and the nied them by statute. objections made to it were that it was ultra

The decision in the Westbrook Case applies vires because its term of duration operated the doctrine of estoppel to the city and then as an improper abridgment of the legislative

says: or governmental power of the city over the

"If a city which has received the benefits of subject, and that it imposed an indebtedness upon the city in excess of the limitation in interposing a defense based upon the manner

a contract, not ultra vires, is estopped from section 12 of article 9 of the Constitution. in which the contract was made, individual taxThe latter objection was held invalid, and as

payers cannot, by injunction, restrain the city to the former it was held unnecessary to de from paying for or restoring the benefits." cide it because it applied only to the executory part of the contract and had no appli. [7] No authority is cited in support of this cation to the executed part; that the legal proposition, but Badger v. Inlet Drainage effect of the contract was only for the light- District, supra, is authority to the contrary, ing of the streets with gas, to be supplied holding that the drainage commissioners from month to month during the pleasure of could not by their acts and conduct enlarge the city, for which the city was liable as one their powers over the property within the of the current, ordinary expenses. There district and estop the owners of the propwas no question of the power of the city to erty without their knowledge and consent. make a contract for lighting the streets. The However, the question of estoppel does only question was as to the period of thirty not enter into the case. The city cannot years. The decision is based upon the prin- be estopped to dispute the validity of a ciple that although there may be a defect of contract which it had no power to make, power in a corporation to make a contract for the reason that it has received the conin respect to the term of its duration, only, sideration. "Every is presumed to yet if the contract made by it is not in vio- know the extent of the powers of a municipal lation of its charter or of any statute pro- corporation, and it cannot be estopped to hibiting it, and the corporation has by its aver its incapacity, which would amount to promise induced a party relying on the prom- conferring power to do unauthorized acts ise and in execution of the contract to ex- simply because it has done them and receivpend money and perform his part thereof, ed the consideration stipulated for. Stevens the corporation is liable on the contract. v. St. Mary's Training School, 144 Ill. 336;

Badger v. Inlet Drainage District, 141 Ill. Hope v. City of Alton, 214 Ill. 102; May v. 540, 31 N. E. 170, is another of the cases City of Chicago, 222 Id. 595 ; People v. Parkcited in support of the Westbrook Case, su-er, 231 id. 478.” Eastern Illinois Normal pra, which does not support it. The opinion, School v. City of Charleston, 271 Ill. 602, 111 after referring to City of East St. Louis v. N. E. 573, L. R. A. 1916D, 991. East St. Louis Gas, Light & Coke Co., supra, The judgment of the Appellate Court will and stating the effect of the decision, con- be reversed, and the decree of the circuit tinues:

court affirmed. “But in such capps there is power to do the Judgment of Appellate Court reversed. particular thing, only it is not authorized to Decree of circuit court affirmed.



(315 Ill. 370)

Action of forcible entry and detainer by FUCHS V. PETERSON. (No. 16078.) Albert Fuchs against George Peterson. Judg. (Supreme Court of Illinois.

Feb. 17, 1925.)

ment for defendant in Municipal Court was

affirmed by the Appellate Court (232 Ill. App. 1. Landlord and tenant m86(2) Lessee's 287), and plaintiff brings error. Affirmed.

right to demand renewal of lease, lost, unless prerequisite of notice by registered letter, Brown, Alschuler & Reagh, of Chicago, for was waived by lessor.

plaintiff in error. Where lease gave tenant option for renewal Warren Pease, of Chicago (J. Arthur John. at increased rate, but required him to give no- son, of Chicago, of counsel), for defendant tice by registered letter before a date certain in error. 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 waiv

DUNN, J. This writ of error brings beed by lessor.

fore us the case of Albert Fuchs against 2. Appeal and error mas 1002–Verdict and judg. George Peterson, in which the Appellate

ment conclusive on conflicting evidence of les. Court for the First District affirmed a judg. sor's waiver of timely notice of exercise of ment of the municipal court of Chicago in renewal option.

favor of the defendant in an action of forci. Verdict and judgment in forcible entry and ble entry and detainer. detainer held conclusive on conflicting evidence On May 1, 1918, Fuchs leased the premises as to lessor's oral waiver of timely notice of ten- at 3808 Broadway, in Chicago, to Peterson ant's intent to exercise renewal privilege. from that date to April 30, 1923. The lease 3. Landlord and tenant Om86(1)—“Option to contained the following clause : renew" lease held covenant to grant addition.

“Lessee to have the first option for a new al term.

lease for another term of five years at not over An "option to renew" lease is not a present $250 a month and if a registered letter notice demise of an additional term, but a covenant to is given by March 1, 1923, to this effect.” grant such term. 4. Landlord and tenant com 290(1)-Lessor can.

[1, 2] The notice was not given, but Peter. not institute forcible entry and detainer against lessee rightfully in possession, at ex.

on April 30, 1923, tendered Fuchs a piration of term under lease containing op. check for $250, which was returned in a lettion for renewal.

ter from Fuchs' attorney declining to reA lessee under a lease containing an option ceive it solely for the reason that Peterson for a renewal of the term, who is in possession was not a tenant, expressly waiving any at the expiration of his term and who has com- question of the legality of the tender. The plied with his contract in every particular, is en- lease gave an option to the lessee for a new titled to a lease authorizing him to continue the lease, at an increased rate not exceeding possession for the new term, and lessor cannot $250 a month, for a new term of five years eject him or institute forcible entry and detainer under Smith-Hurd Rev. St. 1923, c. 57, § 2. upon the condition precedent that the lessee

should give notice to that effect by register. 5. Evidence @mw467_Party to written contract ed letter by March 1, 1923. The time of

may by parol waive performance of condition giving the notice was of the essence of the inserted in contract for his benefit.

contract, and upon failure of a compliance While a sealed executory contract cannot be with its requirement the right of the lessee modified or changed by parol agreement so as to authorize either party to sue on it

, a party to to demand a new lease was lost unless the a written contract may, by parol, waive per condition was waived by the lessor. Dikeformance of a condition inserted in the contract man v. Sunday Creek Coal Co., 184 III, 516, for his benefit, and such waiver is not a modifi. 56 N. E. 864. To show such waiver, a lawcation or change in the terms of the original yer who was advising Peterson testified that agreement.

he went with Peterson to see Fuchs about 6. Frauds, statute of Ow58(2) Lessee held the middle of March, 1922, which was more

entitled to claim additional tenancy of five than a year before the expiration of the years where lessor orally waived written no- lease, and said to Fuchs: tice of lessee's intention to renew lease, despite statute.

"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 exercised the right to renew or extend this lease lease for more than one year is invalid under for another period of five years under the terms Statute of Frauds, 8.2.

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 Error to Third Branch Appellate Court, is here to tell you he is going to go along with First District, on Appeal from Municipal this lease and he is going to renew it and exerCourt of Chicago; D. H. Wamsley, Judge. Icise that option."

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

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(146 N.E.) That Fuchs then said:

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."

holding over by the defendant in error was

not without right but was under his contract Peterson also testified as to what occur- for a lease, with which he had complied. red, but his testimony is not so clear. It This is in accordance with the recognized added nothing to the lawyer's testimony and rule that an action of ejectment, which is took nothing from it. Fuchs denied that a possessory action, cannot be maintained anything was said in the conversation about against purchasers in possession under a the renewal of the lease or the necessity of contract of purchase until they have made giving a written notice. The verdict of the default in the performance of the contract. jury and the judgment must be regarded as Hutchinson v. Coonley, 209 Ill. 437, 70 N. E. conclusive on this question in favor of the 686; Sands v. Kagey, 150 Ill. 109, 36 N. E. defendant in error.

956; Stow v. Russell, 36 Ill. 18. A lessee's [3] If the lessee's election was properly rights are not different from what they exercised, he became entitled to have a new would be under a contract of purchase. lease for a term of five years, beginning May While the lessee has not purchased the fee 1, 1923, at $250 a month, on the same terms in the premises, he has purchased an estate as the original lease. The effect of the op- for years, which carries with it the right of tion was not to create a present demise of possession for the length of the term as the additional term beginning May 1, 1923. fully as a purchase of the fee. A mere conIt amounted to no more than a covenant to tract for the purchase of land does not augrant the term, and for a failure to do so thorize the purchaser to enter into possession the lessee's only remedy, it was formerly without the license of the vendor, but where held, would be by bill in equity for a specific a lessee has an option for the renewal of his performance or an action at law on the lease and is in possession at the expiration agreement. Hunter v. Silvers, 15 Ill. 174; of his term, he is in possession under a title Sutherland v. Goodnow, 108 Ill. 528, 48 Am. rightfully obtained, and having been guilty Rep. 560. In the former case it was decided of no default, but having 'complied with his In 1853 that such an option for a new lease contract in every particular, he is entitled to could not be used as a defense to an action a lease authorizing him to continue the posto recover the possession of the premises session for the new term. An action of ejectbrought after the expiration of the original ment could not be maintained against him by term. The statute in regard to forcible en the lessor; neither can one of forcible entry try and detainer at the time of that decision

and detainer. provided that if any person should willfully

[5, 6] It is contended that the covenant to and without force hold over any lands, tene- renew, not being a present demise, requires a ments, or other possessions after the determi- new lease, without which the tenant cannot nation of the time for which such lands, ten- retain possession, and if the supposed waiv. ements, or possessions were let to him or to

er of written notice and parol election of the the person under whom he claimed, after de lessee entitles him to a new lease, they not mand made in writing for possession there only destroy the lessor's right to a written of by the person entitled to such possession, notice but their effect is to create a lease such person should be adjudged guilty of for a period of five years, in violation of forcible entry and detainer, or forcible de section 2 of the Statute of Frauds (Smithtainer, as the case might be. Rev. Stat.

Hurd Rev. St. 1923, c. 59), which prohibits 1845, p. 256, § 1. So long as there was not the bringing of an action to charge any peran actual renewal there was no lease re

son upon any contract for the sale of any quiring the lessee to pay rent for the term interest in lands for a longer term than one and conferring on him the legal right to year unless such contract be in writing. It possession. The law in regard to forcible is argued that the waiver of written notice entry and detainer was revised in 1874 to could not result in the creation of a tenancy provide that

for an additional five years or of any right "The person entitled to the possession of to claim such tenancy. The right to claim a lands or tenements may be restored thereto in new lease for five years is contained in the the manner hereafter provided:

original lease. If the defendant in error had Fourth, when any lessee of the lands or tene- given the written notice which it required, ments, or any person holding under him, holds he would, without question, have been entipossession without right after the determination of the lease or tenancy by its own limitation, tled to a renewal of his lease, and, in accordcondition or terms, or by notice to quit or other ance with what we have already said, to wise.” Smith-Hurd Rev. St. 1923, c. 57, § 2. the judgment which was rendered in his

favor. [4] The revision changed the statute by What was the effect of the waiver? The providing that the holding over of the ten- rule has been established in this state by ant which would justify the proceeding in many decisions that a sealed executory conforcible entry and detainer must not only tract cannot be modified or changed by parol

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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 forci.
Ill. 43; Barnett v. Barnes, 73 Ill. 216; Al- ble detainer, in which judgment was render-
schuler 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 ill. 120, 50 N. E. 1059; not make any alterations in the premises
Lanum T. Harrington, 267 Ill. 57, 107 N. E. without the written consent of the lessor un-
826. 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 evi.
ment 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 judg-
in case he survived her, and he covenanted, ment, that there was no error in this instruc-
among 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 “Any party has a right to waive a strict com-
life. Soon after the marriage the policy was pliance with the terms of a contract, and proof
dropped at the request of the wife, and of such waiver may consist of acts in pais."
though the husband desired to take out oth-
er insurance, she insisted that he should not

The judgment will be affirmed. do so and she would waive that provision

Judgment affirmed. 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

(315 III, 332) waiver and could not insist upon the for

MINNIE CREEK DRAINAGE DIST. V. feitare of the contract because of the hus.

NATION et al. (No. 16383.) band's failure to perform this covenant. In (Supreme Court of Illinois. Feb. 17, 1925.) Kissack v. Bourke, 224 Ill. 352, 79 N. E. 619, the contract of sale required the vendee to 1. Drains em 15-Lands of owner using natural deposit the purchase money in a certain

drains not subject to annexation to district. bank within 60 days. Before the expiration

Owner of dominant estate may rightfully of the time the parties agreed, verbally, to collect surface waters and drain them into an extension of the time for completing the natural water courses emptying into ditches of contract 30 days, to enable the vendor to to be annexed to the district.

a drainage district without subjecting his land have the abstract of the title brought down to date so as to show a good title in him. 2. Drains Ow 15–To warrant annexation of The money was deposited within the 30 days,

lands outside district, it is insufficient to but it was objected that the extension agree

show merely that waters from lands ultimate

ly flow through district ditch. ment was not evidenced in writing and was

To establish that lands outside of district therefore void because within the statute of have been connected with district ditches, it is frauds. It was held that the vendee had not sufficient to show that surface waters ul. waived a compliance with that provision of timately flow through district ditches, but it the contract by his agreement for an exten- must be shown that an artificial ditch has been sion and that the proof of the waiver might constructed which leads into the district ditch be made by parol. In Chicago & Eastern 11. or into some previously constructed artificial linois Railroad Co. v. Moran, 187 111. 316, 58 ditch connecting with the district ditch. N. E. 335, a subcontract for the construction 3. Drains Om 15-Lands outside district held of railroad machinery provided that no oth- not subject to annexation in absence of shower stone than that specified in the contract ing of benefits. should be used without the written consent Owners of lands outside drainage district of the company's engineer. On a petition to who, while Laws 1919, p. 442, were in force, enforce a mechanic's lien, it was held that and before the amendment of 1923 (Laws this provision was waived by the oral direc. 1923. p. 335), improved natural water courses

on their own lands to collect and carry off extion of the engineer for the substitution of

cess waters, which resulted in increasing the other stone, which was accepted and used by amount of water carried by drainage district the company. These cases were in equity. ditch, held not subject to have lands annexed to

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

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