# Jack Spring, Inc. v. Little > Illinois Supreme Court · January 28, 1972 · 50 Ill. 2d 351 URL: https://www.frixlaw.com/law-library/cases/9884864 ## Case - **Full name:** JACK SPRING, INC., Appellee, v. EMMA LITTLE, Appellant; SUTTON & PETERSON, INC., Appellee, v. ZELETA PRICE, Appellant - **Court:** Illinois Supreme Court - **Decided:** January 28, 1972 - **Citations:** 50 Ill. 2d 351; 280 N.E.2d 208; 1972 Ill. LEXIS 494 - **Precedential status:** Published - **Opinion:** Dissent by Kluczynski - **Judges:** Irving Goodman and Nathan Einhorn - **Cited by:** 137 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9884864 ## Opinion text Mr. Justice Kluczynski, dissenting: Initially, I would dispel any inference that a claim for rent due was involved in this combined appeal. The record discloses that the prayer for a rent judgment in the Little complaint was dismissed in the trial court and as specifically stated in the Little brief: “This case comes before the Supreme Court on appeal from a judgment and writ of restitution entered against Defendant tenant pursuant to a forcible detainer action for possession only of leased premises based solely upon an allegation of non-payment of rent due under an oral lease.” Nor was rent involved in the Price complaint. Therefore, I believe, no matters of “joinder, counterclaim or otherwise” were germane to the distinctive purpose of these proceedings — the sole right to possession of the premises. The majority opinion destroys the summary purpose and aspect of the Forcible Entry and Detainer Act and defeats the legislative intent expressed therein. The defendants even admit that there “is a persuasive assumption that a landlord is simply not contractually bound to repair or maintain leased premises, by any standard, unless the landlord has expressly agreed to do so by written covenants,” citing Gibbons v. Hoefeld, 299 Ill. 455 , and Moldenhauer v. Krynski, 62 Ill. App. 2d 382 . This principle holds doubly true in the case of the Price appeal since paragraph 3 of their lease includes an express disclaimer of any promise to repair. Accordingly even if there were some covenant which the law implied when there is no lease provision otherwise, the principle applies, as set forth in Rubens v. Hill, 213 Ill. 523 . At common law the tenant became the possessory owner of an estate for a period of time and during that term the primary indicia of ownership passed to him. (1 American Law of Property, sec. 3.38.) Thus it became the duty of the tenant to make repairs to the let property and also maintain his obligation to pay rent. Accordingly, the rule developed that in the absence of a covenant to repair, the landlord owed his tenant no duty of maintenance. Furthermore, even where an express covenant to repair by the lessor is given, the usual construction is that the covenants of the lessor and lessee are independent, so that the lessee may not treat the lessor’s failure to repair as a basis for stopping rent payments. (1 American Law of Property, sec. 3.79; Truman v. Rodesch, 168 Ill. App. 304 ; Geiger v. Brown, 167 Ill. App. 534 .) Thus, at common law, the breach by the landlord of his express covenant to repair can in no way be construed an available defense to a defaulting tenant in a suit merely determining the right of possession. In Truman, the lessee refused to pay rent and continued to occupy the premises; when the landlord sued for possession under the Forcible Entry and Detainer Act, the lessee claimed breach of the landlord’s promise to adequately heat the premises. In rejecting the defense, the court said ( 168 Ill. App. at p. 306 ): “* * * Defendant takes the position that if his damages exceeded the rent due, then he was in fact not in default and there was no rent due, and therefore this suit could not be maintained. With this contention we do not agree. The covenant to pay rent was not upon condition that plaintiff comfortably heat said premises, but was a separate and independent covenant; and when he failed to perform it, the landlord had the right, after notice and demand, to declare the lease forfeited, and to sue for possession. ‘The whole question in actions of this nature is, does the defendant unlawfully withhold possession of the premises sought to be recovered in the action.’ Woodbury v. Ryel, 128 Ill. App. 459 . “If this was an action for recovery of the rent, a different question would be presented. Appellant argues that he should have been permitted to make said defense, on the grounds that it would prevent a multiplicity of suits, which is favored in law, but the legislature of this and many other states has seen fit to provide this summary proceeding solely for obtaining possession of real estate, regardless of the question of the amount of rent due or damages sustained. This act has been in existence too many years, and our courts have dealt with it too long, for us now to declare it ineffectual for the purpose intended. “The law is well settled in this and other states, that the tenant cannot prove his damages suffered because of the failure or neglect of the landlord to perform an independent covenant on his part, in an action solely for possession. Peterson v. Kreuger, 70 N.W. Rep. 567 , ( 67 Minn. 449 ); Mark v. Shumann Piano Co., 208 Ill. 282 ; McSloy v. Ryan, 27 Mich. 109 .” This has been the law until the majority here chose to abrogate it. The majority seeks support in an extensive quote from the 1892 case of Ingalls v. Hobbs, 156 Mass. 348 , 31 N.E. 286 . This was an action to recover $500 for the use and occupation of a furnished dwelling during one summer period. The court there concluded by saying: “We are of opinion that in a lease of a completely furnished dwelling house for a single season at a summer watering place, there is an implied agreement that the house is fit for habitation without greater preparation than one hiring it for a short time might reasonably be expected to make in appropriating it to the use for which it was designed.” In Gade v. National Creamery Company (1949), 324 Mass. 515, 518 , 87 N.E.2d 180, 182 , the Massachusetts court held that “In the ordinary lease of real estate there is no implied warranty that the premises are fit for occupancy or for the particular use contemplated by the lessee. The lessee takes the premises as he finds them. [Citations.] The plaintiff, however, contends that the present case comes within the exception to the general rule stated in Ingalls * * *. The principle of Ingalls v. Hobbs, although extended to include in the implied agreement the structural condition of the house, Ackarey v. Carbonaro, 320 Mass. 537 , has been recognized as a departure from the general rule, Hacker v. Nitschke, 310 Mass. 754 , and in its application has been limited to factual conditions similar to those on which the decision was based.” And in a recent Massachusetts case, the (tort) case of Horton v. Marston (1967), 352 Mass. 322, 326 , 225 N.E.2d 311, 313 , the court, after a review of similar cases, said: “We think that the length of the term in the case at bar [9 months] was not such as to place the risk of concealed defects on the tenant. Here, as in the Ingalls case, an ‘important part of what the hirer * * * [paid for was] the opportunity to enjoy * * * [the dwelling] without delay, and without the expense of preparing it for use.’ We hold that the defendant impliedly covenanted on September 4, 1962, that cottage No. 2 and its furnishings were then suitable for their intended use.” The departure of Ingalls was again limited and I therefore find it an inappropriate support for the opinion of the majority. They argue principles which were expressed in Schiro v. W. E. Gould & Co., 18 Ill.2d 538 , an action involving a contract for purchase of land and a building to be constructed thereon by the sellers, where we held that such contract contemplated compliance with the city building code. These principles are clearly inapplicable to the facts of the instant case. The opinion states that the rationale of our Rosewood decision applies here. (Rosewood Corp. v. Fisher, 46 Ill.2d 249 .) It is not so. We specifically limited ourselves (at p. 255) to a consideration of the Act only so far as it applied to contract purchasers of land and said, quoting from Bleck v. Cosgrove, 32 Ill. App. 2d 267, 272 , that: “Forcible entry and detainer is a summary statutory proceeding to adjudicate rights to possession and is unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.” We further held that “the defenses going to the validity and enforcibility of the contracts relied upon by the plaintiffs were germane to the distinctive purpose of the forcible entry and detainer actions and were improperly stricken.” ( 46 Ill.2d 249, at 256 .) And we further cautiously continued with: “Where as here, the right to possession a plaintiff seeks to assert has its source in an installment contract for the purchase of real estate by the defendant, we believe it must necessarily follow that matters which go to the validity and enforcibility of that contract are germane, or relevant, to a determination of the right to possession.” 46 Ill.2d 249, at 256-257 . The rule of law established by the opinion will do more harm than good. It will create a maze of practical problems of substantive and procedural nature, and will inundate the already understaffed metropolitan courts with a flood of protracted litigation. Numerous frivolous, trivial and spurious claims will unduly delay the termination of possessory rights in land and property. The legislature is in a better position than this court to consider the problems involved and to determine any needed changes to these well settled common law and statutory doctrines. It did so by statutory enactment (Illinois Public Aid Code) regarding rent withholding in the case of public aid recipients through the determination of the Department of Public Aid. (Ill. Rev. Stat. 1969, ch. 23, par. 11 — 23.) Fundamentally it is the legislature’s province to enact reforms and establish public policy for regulating the behavior and protecting the rights of all of the citizens. Illustrative of this, are the rent-withholding laws and regulatory statutes regarding landlord and tenant rights and housing codes enacted in our sister States. Here, the court has deliberately usurped the delegated powers of the people’s representatives in the General Assembly and established a major change in the nature of long established rights regarding real estate and leaseholds. The trial court properly applied the law and its decision should have been affirmed. Mr. Chief Justice Underwood joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9884864. Public record. Not legal advice.