delivered the opinion of the court:
The term “eviction” is applied to every class of expulsion or amotion. The term is not applicable to a mere trespass on the tenant’s possession by the landlord, but to constitute eviction there must be something of a grave and permanent character done by the landlord, for the purpose and with the intention of depriving the tenant of the enjoyment of the demised premises. The question is therefore one of fact, dependent on the circumstances of the particular case, and to be determined by the jury. Hayner v. Smith, 63 Ill. 430; Lynch v. Baldwin, 69 id. 210; Morris v. Tillson, 81 id. 607.
At common law, in the absence of a provision to that effect in the lease, the destruction of the building from any cause does not discharge the tenant from his liability to pay rent for the full term. (Smith v. McLean, 123 Ill. 210.) The landlord owes no duty and is under no obligation to repair in a case where he has expressly covenanted with the tenant he shall not be liable to make repairs. Moffatt v. Smith, 4 N. Y. 126; Mumford v. Brown, 6 Cow. 475; Corey v. Mann, 6 Duer, 679; Ely v. Ely, 80 Ill. 532; Wood on Landlord and Tenant, 814.
The contract of the parties is the measure of their duties and liabilities. The contract is made with reference to the law as it exists, and the law thus becomes a part of the contract. Unless the premises are rendered useless to the tenant by the positive act of the landlord, or unless the tenant has been deprived, in whole or in part, of the possession or enjoyment of his demised premises, actually or constructively, by the landlord, no defense exists to a right to recover rents because of eviction, as none exists, in law or fact. Keating v. Springer, 146 Ill. 481.
The eviction sought to be shown by appellant was constructive. The possession of the premises was retained by the tenant after the alleged acts of eviction. Possession retained after an alleged constructive eviction is a waiver of the right of abandonment. No constructive eviction exists without a surrender of possession. With retention of possession after constructive eviction, liability for rent exists, according to the terms of the lease, during occupancy thereunder. Warren v. Wagner, 75 Ala. 188; DeWitt v. Pierson, 112 Mass. 8; Scott v. Simons, 54 N. H. 426; Boreel v. Lawton, 90 N. Y. 293; Keating v. Springer, supra.
By the terms of the lease the tenant accepted the premises as in good repair, and covenanted to deliver up the same in repair, etc. He also accepted a covenant that the landlord should not be liable for failure to keep the premises in repair, nor for damages arising from the act or neglect of co-tenants or occupants of the same building, nor of owners or occupants of adjacent or contiguous property. He further covenanted that he would keep the premises in repair, etc. Such being his contract which is the subject matter of construction, his proposed proof was of no act on the part of the landlord or his agents at the time of the letting, nor subsequently, except a failure to repair. No positive act was proposed to be proven on the part of the landlord or his agents duly authorized. Eviction necessarily being the result of an intended, willful, wrongful act, it must be by a willful omission of duty or a commission of a wrongful act. Where there is no duty not complied with, and no wrongful act committed by the landlord towards the tenant, no eviction occurs. It was not proposed to prove any positive act by the landlord, nor an omission of duty according to the terms of his contract, in person or by authorized agents. An offer to prove matter as a basis of surmise or suspicion is not evidence. Under the lease in evidence the offered proof was not matter of defense. It was not error to exclude the same.
The terms of the contract of leasing in this case are of that character it is not necessary to enter upon the discussion of the question as to whether a different rule exists in relation to the leasing of an entire building or only apartments therein. However the rule may be on that question, there is nothing in this record which presents it for consideration at this time. The examination of the evidence in this record discloses there is no conflict as to the time to which rent had been paid. Appellee’s agents testified rent was paid to April 15, and the amount due November 15 was $1625. The tenant testifies no rent was paid after April 15. The lease, by its terms, shows the rent due, according to the tenant’s testimony, is $1625. In this condition of the evidence it was not error to instruct the jury to find a particular amount for the plaintiff.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.