Hansen v. Meyer. While the law requires a municipal corporation to keep its streets and sidewalks in a safe condition, and clear of all dangerous obstructions, yet a person who travels over the streets or sidewalks has no right recklessly to walk into danger, and if he does so, he cannot recover for an injury received. The pedestrian must exercise due and ordinary care to avoid danger, and where he fails to do so, and if it appears, had that precaution been observed, the injury could have been avoided, no recovery can be had. As the evidence fails to show that the plaintiff in passing over the walk exercised due care to avoid the danger, the court erred in overruling the motion for a new trial, for which error the judgment will be reversed and the cause remanded. SCOTT, C. J., dissenting. Judgment reversed. HANSEN V. MEYER. (81 Ill. 321.) Lease-when binding on assigns — Retroactive statute. Where a written lease does not in terms bind the lessor's assigns, the lessee cannot maintain an action against a grantee of the premises from the lessor, for breach of a covenant on the part of the lessor to put in fixtures. A statute giving to lessees of lands the same right of action against assignees of the lessors that they would have had against the lessors themselves, is not retroactive. A CTION for damages for breach of covenant in a lease. The opinion states the case. Bloomfield, Pollock & Campbell, for appellant. Rowell & Hamilton, for appellees. SHELDON, J. This was a suit to recover damages for the breach of a covenant in a lease, brought by the lessee against the assignees of the reversion. The facts are: On the 15th day of December, 1872, Matthew Hansen v. Meyer. Hansen, the appellant, leased of one John Hoffman, by written. lease, premises described in the lease as follows: "Store-room on first floor in the hotel building on corner of C. and A.R. R. and Chestnut street, on part of lot one, etc., in Bloomington, Ill.," the lease, by its terms, to continue one year, with monthly rental in advance, with the privilege to lessee to extend the lease by giving sixty days' notice each year The lease was the ordinary blank used for such purpose, and after the leasing part, has the following written in the body of the lease: "Party of the second part is to put in counters and shelving, which said counters and shelving the party of the first part hereby agrees to buy from party of the second part at a reasonable price, at the expiration of the first year of this lease. Party of the first part is to put in good fixtures and other things necessary to the said room." Hansen took possession of the room under this lease, and put in counters and shelving for his use in the retail dry goods business, which he engaged in. He remained in possession, using these counters and shelving himself, until the trial of this cause, June 14, 1875. On the 1st day of July, 1873, Hoffman, the lessor, sold the hotel building and premises in which this room was situate, to the appellees, Hansen being then in possession. At the end of the first year, Hansen brought this suit against appellees, on the lease, to recover from them the value of these counters and shelving. The lease, in terms, states that the covenants therein shall extend to and be binding upon the heirs, executors and administrators of the parties, and nowhere mentions or includes assigns of either party. The cause was tried by the court below without a jury, and judgment rendered for the defendants. The plaintiff appealed. The question presented is, are appellees, as assignees of the reversion, liable, under this lease, to appellant, the lessee, for the value of the counters and shelving? The covenant in the lease is, that Hansen "is to put in counters and shelving." This was to be done in the future; the covenant related to a thing not in esse, at the time of the execution of the lease, and does not bind assigns when, as here, not expressly named in the covenant. 16. The leading authority on this question is Spencer's Cuse, 3 Rep. That case was a covenant by the lessee for him, his executor (not assigns), that he, his executors, administrators or assigns, would build a brick wall on the demised premises. His assignee Hansen v. Meyer. being sued, it was held that he was not bound, because the thing in respect to which the covenant was made, was not in esse, and had not yet become a part of the land. Its existence was in contemplation. And yet it was agreed that, because it was a thing that would directly affect the demised premises, if the word assigns had been used, the covenant would have bound the assignee. The assignee is to take the benefit of it and shall be bound by express words. In Grey v. Cuthbertson, 2 Chit. 482, the covenant was by the lessor, but not for his assigns, to take and pay for all fruittrees and bushes growing, at the end of the term, which the lessee should plant. The assignee of the lessor was held not to be liable, for want of the word "assigns;" though it was admitted that this word would have charged him. The decision was on the distinction in Spencer's Case, that the thing did not exist at the time of the covenant. But it is supposed by appellant's counsel, that the following statute of this State gives this right of action against the assignees of the reversion, viz. : "The lessees of any lands, their assigns or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees or his or their representatives, for the breach of any agreement in such lease, as such lessee might have had against his immediate lessor." Rev. Stat. 1874, p. 659, § 15 (in force July 1, 1873). This lease was executed December 15, 1872. The lessor, Hoffman, sold and conveyed the property to appellees July 1, 1873. This statute did not go into effect until July 1, 1873. Without regard to the question, whether a covenant of such a character as this is within the purview of the statute, we are of opinion that this statute does not apply in this case, as it was enacted after the lease was executed. To hold it as applying to this lease, would be to give the statute a retrospective operation. Retrospective laws. are viewed with disfavor, and courts do not allow statutes to have a retroactive effect on past transactions, unless it appears that such was the intention of the legislature manifested by clear and unequivocal expressions. In the matter of the will of Tuller, 79 Ill. 99, and the authorities there referred to. The very essence of a new law is a rule for future cases, per KENT, C. J., in Dash v. Van Kleeck, 7 Johns. 502. There is no reason or justice in the statute stepping in and con Walker v. Coleman. ferring upon this lessee security for the payment of a sum of money which he failed to take for himself, to wit: the security of assigns; and to give to him an additional right of action, which he did not have by his contract of his own making, or by operation of law. No such a case could have been within the intendment of the statute. We hold that the statute does not apply to this covenant, made before its passage. The judgment will be affirmed. Judgment affirmed. WALKER V. COLEMAN. (81 Ill. 390.) Party to fraud on wife by husband liable to wife. A husband bought lands for his wife at a fixed price, but by an arrangement between him and the vendor, the latter paid double that price, and the husband, without the knowledge or authority of his wife, received and appropriated the excess to his own use, telling the vendor that his wife assented to it. Held, that the wife could recover the excess from the vendor. A SSUMPSIT for money had and received. The case is stated in the opinion. Rowell & Hamilton, for appellant. Stevenson & Ewing and Isaac N. Phillips, for appellee. SCHOLFIELD, J. This was assumpsit for money had and received by the defendant to the plaintiff's use. Suit was commenced in the county court of McLean county, where trial was had, resulting in a judgment for the plaintiff for $354.25. Appeal was taken to the Circuit Court of that county, and the judgment of the county court was there affirmed. From that judgment the case is brought to this court by the defendant's appeal. Plaintiff is a married woman, now living separate from her husband, but at the time the cause of action accrued she was residing with him. She had been married before, and had children by her Walker v. Coleman. former marriage. She had property and money in her own right, and was desirous of purchasing a farm. The defendant was a real estate agent, doing business in Bloomington, and, as such, had the agency for selling a farm known as the "Wilcox farm," and also for selling certain lands in the State of Kansas. Plaintiff's husband, assuming to act for her, negotiated for the purchase of the Wilcox farm, and also for the Kansas lands and turned the Kansas lands over to the owner of the Wilcox farm, in part payment for it, at $10 per acre; but in his negotiation for the Kansas lands the price agreed to be paid for them was only $2.50 per acre. When the deeds were made and the transaction closed, plaintiff was told the price to be paid for the Kansas lands was $5 per acre instead of $2.50 per acre; and she paid the defendant $350 in money, and executed and delivered to him her promissory note for $450, in excess of the price of the Kansas lands at $2.50 per acre. Subsequently the plaintiff found the note she had given the defendant in her husband's pocket, and she then, for the first time, learned that the price of the Kansas lands was only $2.50 per acre. She thereupon called upon the defendant, and he informed her that the price of those lands was $2.50 per acre, and that the note and money had gone to her husband. There is no pretense that plaintiff's husband was entitled to have the note or money, or that the plaintiff ever agreed he should have either. Plaintiff testifies that she had no arrangement with her husband to that effect, and that she did not have any knowledge of his getting them until she found the note in his pocket. The note was subsequently obtained by the defendant and returned to the plaintiff, and the present suit relates only to the $350 of money. * * The defendant testifies that, after he and plaintiff's husband had agreed on the terms of the trade, "he said he had been working for the family two or three years, and had got nothing for it, and his wife was going to allow him something in the trade. Said he had talked the matter over with her, and she was going to allow him $5 per acre in the Kansas land. He said his wife had a daughter about to be married, and that if she knew Mrs. Coleman was allowing him any thing in the trade she would make a fuss, and that he and Mrs. Coleman had arranged that the extra $2.50 per acre for the Kansas land was to be paid to me and by me to him; that $450 would be in a note; and to make it all right it |
