LONGENECKER v. HARDIN

MR. PRESIDING JUSTICE STAMOS delivered the opinion of the court.

Plaintiff recovered a judgment in the amount of $355 and costs against defendants for past due rent. Defendants appeal, and contend that the court erred in striking their two affirmative defenses.

On October 26, 1967, the parties executed a lease for the rental of an apartment from November 1, 1967, through October 31, 1968, for $115 a month.

In the latter part of April, 1968, plaintiff initiated a forcible entry and detainer action against defendants for possession of the apartment and on May 10, 1968, the court entered judgment for possession but stayed the issuance of the writ of execution until May 25, 1968, on which day defendants vacated the premises.

Later in the year, plaintiff initiated another action, judgment by confession, as provided for in the lease and alleged that the sum of $470 was due and unpaid for rents, and that plaintiff was also entitled to $14.10 interest and $80.12 in attorneys fees for a total of $564.22. Defendants upon being served with summons to confirm the judgment responded and interposed two affirmative defenses.

Defendants' first affirmative defense was that the parties agreed to cancel the lease as evidenced by the written expression on the face of the lease which provided, "May 10, 1968, lease cancelled by agreement, Chgo. Mgmt. Co., by Moe M. Forman, its atty." Defendants alleged that plaintiff by his attorney promised to relinquish, waive, surrender and release all rights accruing to him under the lease, in return for defendants' promise to vacate the premises within 15 days and to forbear any contest of plaintiffs' action for possession. Defendants further allege that they performed in conformance with their part of the bargain.

Defendats' second affirmative defense was that the lease was invalid and unenforceable in light of sections 78-13 and 78-17 of the Municipal Code of the City of

Chicago. Section 78-13 provides:

Section 78-17 provides:

Defendants specifically alleged that the premises were in violation of sections 78-13.1 (Water closet), 78-13.6 (Maintenance of sanitary facilities), 78-13.8 (Heat to be furnished, 78-13.11 (Hot water to be furnished), 78-17.1 (Foundations, exterior walls and roofs — maintenance), 78-17.2 (Floors, interior walls and ceilings — maintenance), 78-17.3 (Windows, doors and hatchways — maintenance), 78-17.5 (Stairways and porches — maintenance), and 78-17.7 (Facilities, equipment, chimneys — maintenance).

Plaintiff moved to strike both affirmative defenses. The court granted plaintiff's motion and the cause proceeded to trial. Plaintiff was awarded judgment in the amount of $355 and costs, representing the rent due for the months of March, April and May, 1968, and the unpaid portion of the rent due from February. Defendants appeal from this judgment.

Defendants initially contend that their first affirmative defense was improperly stricken. However, plaintiff maintains that this first affirmative defense was properly stricken because: (1) an attorney retained to prosecute a single action for possession has no authority to compromise his client's rights as to past or future rent due under the leasing agreement and (2) there was no consideration for the extinguishment of the past due rent.

[1, 2] Plaintiff correctly recites an abstract proposition of law regarding the implied authority of a lawyer retained to prosecute an action for possession, but defendants allege that counsel, in fact, did act within the scope of his authority in the case at bar in entering into this agreement on behalf of his client. We hold that defendants should have been afforded the opportunity to adduce evidence on this issue.

[3] With regard to plaintiff's contention as to the failure of consideration, defendants' promise to vacate the premises within 15 days and to forbear any contest of plaintiff's action for possession was sufficient consideration to support plaintiff's promise to surrender and release defendants from all past due rent. Bloomquist v. Johnson, 107 Ill.App. 154.

Therefore, we conclude that the court erred in striking defendants' first affirmative defense.

Defendants next contend that their second affirmative defense was improperly stricken. However, plaintiff maintains that this second affirmative defense was properly stricken because: (1) defendants were barred by the doctrine of laches, (2) defendants were precluded by a provision of the lease from asserting violations of the Municipal Code of the City of Chicago, and (3) such alleged violations would not relieve a tenant from the obligation to pay rent while the tenant remained in possession.

[4] Initially, we note that plaintiff failed to raise his contention of laches in the court below. Therefore, it will not be considered by this court for the first time on appeal.

[5] Plaintiff also argues that the lease contained the following provision, which allegedly deprives defendants of any standing to assert that the premises were in violation of the cited sections of the Municipal Code of the City of Chicago:

This provision cannot preclude the interposition of the doctrine of illegality of the lease. In Estate of Smythe v. Evans, 209 Ill. 376, 70 NE 906 (1904), at page 383, the court said:

[6] Furthermore, the court should have considered the issue of illegality even if it had not been specifically raised, as it was, in defendants' pleading. In Huszagh v. City of Oakbrook Terrace, 41 Ill.2d 387, 243 N.E.2d 831 (1968) at page 389, the court expressed the prevailing rule:

Plaintiff's next point is that violations of the Housing Code will not relieve a tenant from the obligation to pay rent while the tenant remains in possession. This argument is based upon the doctrine of constructive eviction. However, the allegations of defendants' second affirmative defense are not directed to the doctrine of constructive eviction but rather to the invalidity of the leasing agreement itself in light of the city ordinances.

[7] The effect of statutory prohibitions in contractual relationships was dealt with in Ideal Bldg. Material Co. v. Benson Concrete Co., 273 Ill.App. 519 (1934) wherein the court stated at page 525;

Section 78-11 of the Municipal Code of the City of Chicago declares the purposes of the Housing Code and Specific Findings of the Chicago City Council.* The purposes of the Code were also discussed in Gula v. Gawel, 71 Ill.App.2d 174, 218 N.E.2d 42 (1966) and at page 183, the court stated:

Violations of Chapter 78 render the party liable for penalties as provided for in section 78-20.

Therefore, the provisions of the Chicago Housing Code fall within that class of statutory law outlined in Ideal, supra.

Such violations of statutory law have been held to invalidate a lease like the one in Heineck v. Grosse, 99 Ill.App. 441 (1902). In that case, the court held that a lease executed in violation of an ordinance prohibiting the occupancy of part of a sidewalk for private purposes is invalid and could not be made the basis of an action for recovery of rent. At page 444, the court stated:

Similarly, in Western Cold Storage Co. v. Estate of Kaufman, 204 Ill.App. 477 (1917) the court held that a contract for storage charges upon decayed and unwholesome fruit and vegetables was unenforceable because its terms violated the city ordinances which prohibited the storing of condemned produce and provided a penalty therefor.

In Brown v. Southall Realty Co., 237 A.2d 834 (1968), the District of Columbia Court of Appeals held that where at the time of execution of the lease the premises were in violation of the Housing Code rendering habitation unsafe and unsanitary, the lease was void and the tenant was absolved of liability for rent. The District of Columbia Housing Code in that case provided:

We note that this ordinance is similar to sections 78-13 and 78-17 of the City of Chicago Municipal Code.

[8] Therefore, we find that the trial court erred in striking the second affirmative defense. Defendants should have the opportunity to present evidence to show that the premises were in substantial violation of an ordinance cited by defendants.

Therefore, the judgment and the order striking defendants' affirmative defenses are reversed and the cause remanded for proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.