delivered the opinion of the court:
Pirst—The first objection, made by the appellant, is that the lease was not admissible under the declaration, and that, therefore, its admission by the trial court was error. The charge is made that there was a variance between the allegations of the declaration and the terms of the lease, introduced in evidence. It is said that the declaration counted upon an absolute, unconditional agreement to pay money, and that the lease, offered in evidence, contained conditions precedent to be performed by appellee before appellant was bound to pay any money; and that, therefore, there was a fatal variance. The provision of the lease, which counsel for appellant in their objections on the trial below pointed out as constituting a condition precedent, is the provision, which requires appellee “to cause said premises to be put into' a habitable condition and make the same ready for occupancy by the said party of the second part on or before the said 15th day of April, 1902,” etc. If the agreement of the appellee to cause the premises to be put into a habitable condition, and to make the same ready for occupancy before the commencement of the term, involves or is equivalent to an agreement to repair the premises, then it constitutes an independent covenant merely. In the construction of a particular provision the intention of the grantor governs, and where there is any doubt whether the intention of the grantor is to create a covenant or to create a condition, the courts are inclined to construe it as a covenant, and not as a condition. (6 Am. & Eng. Ency. of Law,—2d ed.—p. 502; Davis v. Wiley, 3 Scam. 234; Lunn v. Gage, 37 Ill. 19). The provision in question, being a covenant, cannot be regarded otherwise than as an independent covenant. It is only where covenants are dependent, that the performance by each party of his own covenant is a condition precedent to his right to recover on the covenant of the other party. (18 Am. & Eng. Ency. of Law, —2d ed.—p. 620). If the provision in question be regarded as a covenant to repair, then it is independent of the covenant to pay rent. The general rule is, that the covenant of the landlord to repair or make improvements, and the covenant of the lessee to pay the rent, are independent. (18 Am. & Eng. Ency. of Law,—2d ed.—p. 620; Haven v. Wakefield, 39 Ill. 509). It is to be observed that, in the case at bar, appellant as lessee covenants to pay rent in consideration of the demise alone, and not in consideration of both the demise and of the agreement to put the premises into a habitable condition and make the same ready for occupancy before the beginning of the term. This is another circumstance, going to show that the covenant as to habitability and occupancy is independent of the covenant to pay rent. In Baird v. Evans, 20 111. 29, where the lessor agreed to make certain improvements upon the leased premises, and the agreement was held to be a condition precedent to the payment of the rent, the consideration for the payment of the rent was not merely the leasing of the premises, but the making of the improvements. Such is not the case here, and, hence, the covenant here under consideration, being an independent covenant, is not a condition precedent. If such a covenant is violated, the lessee has an action against the lessor for damages, or can recoup for damages. (Nelson v. Oren, 41 Ill. 18; White v. Gillman, 43 id. 502; Lunn v. Gage, 37 id. 19; Wright v. Lattin, 38 id. 293; Haven v. Wakefield, 39 id. 509; Palmer v. Meriden Britannia Co. 188 id. 508).
But let it be admitted that appellant agreed to pay rent, not only in consideration of the leasing of the premises to him> but also in consideration of the agreement that appellee would put them into a habitable condition and make them ready for occupancy before the beginning of the term on April 15, 1902; then, in such case, the consideration has two parts, one of which is the leasing of the premises, and the other is the making of the same habitable and fit for occupancy. It is well settled that, where a covenant goes only to a part of the consideration on both sides, and the breach of such covenant may be readily compensated for in damages, it is generally considered independent. (18 Am. & Eng. Ency. of Law,—2d ed.— p. 619).
In Nelson v. Oren, supra, where, in consideration of a certain sum of money, Nelson assigned a lease to Oren, and in the same instrument agreed to deliver up possession of the premises on a certain day, and the lease was assigned, but Oren failed to get possession on the day agreed upon, it was held that an important part of the consideration was executed by the transfer of the term, although the remaining part was not executed, and that, for the breach of the latter, appellee had a right to recover damages; and in that case we said (p. 23) : “We do not consider that delivery of possession, under a fair construction of this covenant, was a condition precedent to the right of appellant to recover for the unexpired term. That would seem to be the most important part of the contract, and where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. * * * • The covenant to put the appellee in possession was an independent covenant, the breach of which could be compensated in damages.” So, here, the covenant as to habitability and occupancy was an independent covenant, the breach of which could be compensated in damages, and it was not necessary to aver the performance thereof in the declaration.
In Wright v. Lattin, supra, we said (p. 296) : “If he (the landlord) covenant to repair before the term commences, it may be the tenant might refuse to enter upon the term until the repairs were made, but having entered upon the term and received possession, he cannot abandon the lease and refúse to pay rent for the breach of any other covenant, except for quiet enjoyment. If the landlord fail to repair according to his covenant, the tenant may recoup the amount from the rent, or may sue upon the covenant.” In the case at bar, the appellee covenanted to do certain things before the term of the lease began, and, while the appellant might have refused to enter upon the term until those things were done, yet inasmuch as he did enter upon the term and took possession and kept possession Until the termination of the lease on October 15, 1902, he cannot refuse to pay rent for the failure of the landlord to do the things, which he agreed to do before the commencement of the term. Appellant, while refusing to pay rent, did not abandon the lease.
In White v. Gillman, 43 Ill. 502, where appellee sold to appellant, his landlord, all the crops on his land at a certain price, and agreed to leave the premises in ten days with all his traps, and did leave the premises within the time named, but left a part of such traps, it was claimed by the appellant that- removal of all the traps within the time specified was a condition precedent, and such condition not being’performed by appellee, the latter had no right of action to recover the price agreed to be paid, but the construction thus contended for was not allowed.
In Palmer v. Meriden Britannia Co. 188 Ill. 508, this court said (p. 522) : “Where the plaintiff’s covenant goes to only a part of the consideration, and a breach of the covenant'can be compensated in damages, the defendant cannot rely upon the covenant as a condition precedent, but must perform the covenant on his part, and then rely upon his claim for damages for any breach of the covenant by the other party, either by way of recoupment, or in a separate action.” We are, therefore, of the opinion that the covenant here insisted upon by the appellant as being a condition precedent cannot be regarded as a condition precedent, and, therefore, the lease was not inadmissible under the common' counts for the reason insisted upon.
Here, there was a performance of the contract. Possession of the premises was delivered to appellant, and he occupied the premises for the full period of six months specified in the lease, and at the expiration of the lease nothing remained for him to do on his part except to pay the amount due for the rent. The contract was fully performed on the part of the plaintiff, and, where such is the case, recovery can be had under the common counts. In Mount Hope Cemetery Ass. v. Weidenmann, 139 Ill. 67, this court said (p. 74).: “Indebitatus assumpsit lies upon a written contract, though it be under seal, when the plaintiff has performed and nothing remains to be done under it but the payment of ' money, which payment it is the duty 'of the defendant, under the contract, to make. In such case the plaintiff need not declare specially.” It is well settled that, while there is no liability by implication of law upon an express contract ex-ecutory in its provisions, yet where there has been full performance and nothing remains to be done but the payment of money, or where there has been only part performance and the remainder has been waived or prevented, and the work performed has been accepted, a recovery may be had under the common counts. (Catholic Bishop of Chicago v. Bauer, 62 Ill. 188; Fowler v. Deakman, 84 id. 130; Evans v. Howell, 211 id. 85; Foster v. McKeown, 192 id. 339; 2 Greenleaf on Evidence, sec. 114).
It is claimed by counsel for appellant, that the declaration is defective in not averring that appellant used or occupied the premises in question. If such a defect exists in the declaration, we think that it was cured by the pleas. The pleas, as set forth in the statement preceding this opinion, averred that, after the making of the lease, the appellee entered upon the possession of the appellant and evicted him. In Wallace v. Curtiss, 36 Ill. 156, where there was a material omission in the declaration, it was held that such omission was supplied by the special plea, it being there said (p. 158) : “The pleas cured the omission. * * * The issues were not alone on the facts stated in the declaration, but upon the agreement stated in the special pleas, and they may be taken as amendatory of the declaration, of the issue and verdict, in order to favor the justice of the case.” Chitty in his work on Pleadings, *( marg. p. 671), cites a case, which illustrates this principle, and says that, in an action for trespass for taking a hook, where the plaintiff omitted to state that it was his hook and that it was in his possession, and the defendant in his plea justified the taking the hook out of the plaintiff’s hand, the court held, on motion in arrest of judgment, that the omission in the declaration was-supplied by the plea. We think, moreover, that such other formal defects, as are alleged by the appellant to exist in the declaration, were cured by the verdict, and under the Statute of Amendments and Jeofails, which latter statute provides that “judgments shall not be arrested * * * for any mispleading, insufficient pleading,” etc. (1 Starr & Curt. Ann. Stat. —2d ed.—p. 390; Keegan v. Kinnare, 123 Ill. 280; 1 Chitty’s Pl. pp. 682-684).
The agreement of the appellee to cause the premises to be put into a habitable condition and make the same ready for occupancy on or before April .15, 1902, was not an unrestricted agreement to make all such repairs, as were necessary to make the premises habitable before the commencement of the term. The latter part of the agreement in question qualifies and explains its meaning in the following words, to-wit: “meaning and intending hereby that the boards covering the windows and doors of the dwelling house shall be removed by the said party of the first part, the fixtures connected with the plumbing, and the dwelling house put in condition for occupancy.” These words qualify and serve to explain both the preceding clauses, that is to say, the clause, “to cause said premises to be put into habitable condition,” and also the clause to “make the same ready for occupancy.” The true intent and meaning of the parties to a contract may be determined by an examination of the surrounding circumstances, under which the contract was made, and the acts of the parties themselves in reference to it. (Hadden v. Shoutz, 15 Ill. 581; Piper v. Connelly, 108 id. 646; Louisville and Nashville Railroad Co. v. Koelle, 104 id. 455).
The evidence shows that the place, rented by appellee to appellant, was a country place for use and occupation in the' summer time only, and that, during the winter, the windows and doors of the dwelling house upon the premises were enclosed with boards, and that the plumbing was disconnected from the fixtures to which it was attached, in order to prevent freezing in the winter time. The evidence also shows that the appellant visited the premises before the contract was made, and went through the house, and knew that it had been closed during the preceding winter, and that the doors and windows had been barred up, and that the plumbing had been disconnected, and that the house required airing, and that the furniture had to be dusted and arranged, and the shades and curtains hung. He was aware of these facts when he entered into the lease. The evidence also shows that appellee or her servants or agents removed the boards in question, and Connected the plumbing, and aired the house, and arranged the furniture, so as to put the house in a condition to be occupied by the appellant. In other words, the proof tends to show that the covenant as to habitability and occupancy, interpreted according to the construction above given, was fully performed by the appellee before the appellant took possession. »
It is claimed, however, on the part of the appellant, that the house upon these premises was a furnished house, and that, where a furnished home is leased for a short period as for a season or summer, there is an implied covenant or warranty on the part of the lessor that the premises are fit for habitation.- The doctrine, thus contended for, is sustained by some of the authorities, and repudiated by others. We do not deem it necessary to discuss the doctrine,'or to determine the question whether it should be adopted or approved by this court or not, inasmuch as the decision of the present case does not require such discussion. It is a general rule that, where there is an express covenant relating to the same matter as that embraced in the implied covenant, however qualified the latter may be, the implied covenant will be excluded upon the principle embodied in the 'Latin maxim, expressum facit cessare taciturn. (12 Am. & Eng. Ency. of Law,—1st ed.-—p. 1013). Express covenants abrogate the operation of implied covenants in accordance with the rule of interpretation, that the expression of one thing in a contract is the exclusion of another. (8 Am. & Eng. Ency. of Law,—-2d ed.—p. 83; Finley v. Steele, 23 Ill. 54). In the case at bar, there is an express covenant on the subject of making the furnished house upon the premises in question habitable and ready for occupancy by the beginning of the term, and, therefore, there is no room for an implied covenant. Where the minds of the parties have met and made an express agreement, the law does not enlarge and qualify this express agreement by implication. (Taylor on Landlord and Tenant,—8th ed.—sec. 253). It is true that, although a lease contains express covenants, covenants may at the same time be implied, but the latter will be effective only when they are consistent with the express covenants. (12 Am. & Eng. Ency. of Law,—1st ed.—p. 1012). An implied covenant, that the house upon these premises was fit for habitation, would certainly be inconsistent with the restricted meaning, already given to the agreement or covenant as to habitability and occupancy.
Second—The defense, sought to be made by the appellant, was two-fold. It is claimed that, by the terms of the lease, appellee was bound not only to make the premises habitable and ready for occupancy at the beginning of the term on April 15, 1902, but was also obliged to keep them in repair during the running of the lease, and from the beginning to the end of the term. There is nothing to this effect in the express provisions of the lease. On the contrary, appellant agreed that he would keep said premises in good repair. Upon the assumption, however, that appellee was obliged to make repairs after the beginning of the term, appellant’s first ground of defense is that the house was leaky, that the water came in through the roof, and around the windows, during the rains in the summer of 1902, and that the basement was not properly drained, so that the house was damp. It is also claimed that these conditions could have been obviated by making certain repairs during the running of the lease. The second ground of defense, urged by the appellant, is that he was evicted from a part of the premises. The alleged eviction proceeds from the contention of the appellant, that he was excluded from the tower, and the building on the beach, as described in the statement preceding this opinion, and from two of the rooms in the stable, connected with the dwelling house.
Appellant refused to pay any rent after the 19th of May, 1902, and some conversation took place between him and appellee and her agents, and some letters passed between them, in reference to the making of certain repairs insisted upon by appellant. There was a conflict in the testimony as tó the extent of the dampness and the leaks, and the absence of proper drainage, and also as to the alleged decay of certain portions of the porch around the dwelling. This was a matter for the consideration of the jury, and the jury have determined it against appellant. The court properly instructed the jury that, if they should believe from the evidence that any wrongful act of the appellee or omission to perform anything, required of her by her lease, was such as tended merely to diminish the beneficial enjoyment of the premises leased by the appellant, he was still-bound for the rent if he continued to occupy the same, and that, if the appellant did not abandon the leased premises, his obligation to pay the rent therefor remained, but that he might show, as a matter of defense in what manner such beneficial enjoyment of the premises was diminished by such act or omission to act of the plaintiff, and recoup from the rent such damages, if any, he may have shown by the evidence he had sustained by reason of the wrongful act or omission to act of the plaintiff. Such is the law as has been declared by this court. (Chicago Legal News Co. v. Browne, 103 Ill. 317; Barrett v. Boddie, 158 id. 479; Keating v. Springer, 146 id. 481). Appellant offered no proof whatever on the question of damages, although the instructions given to the jury told them that he might recoup his damages, and were, therefore, exceedingly favorable to him. Inasmuch as appellant entered upon the premises, and enjoyed the use of them during the term of the lease, he could not defeat recovery by showing that there were certain leaks in the roof, or spots in the plaster, or on the walls. It is not claimed on the part of the appellant that the amount of the judgment recovered against him was too large; but it is claimed that he should not be required to pay anything at all for the use of the premises, occupied by him during the whole of the term mentioned in the lease. If the defects arising out of dampness and leakage were such as to entitle the appellant to damages, then the jury were entitled to consider the difference in rental value, produced by such defects, in order to determine the amount of his damages by way of recoupment, but no evidence was produced upon the subject of rental value.
Upon the subject of eviction, the evidence is conflicting also. As to the rooms in the stable, appellant desired his coachman, with the latter’s wife, to occupy certain rooms in the stable adjoining the hay loft, and, as it would be necessary to have a stove in the rooms so occupied by the coachman, some objection may have been made by the appellee or her agent to the putting of a stove in the stable. But it is not clear from the proof that there was an absolute refusal on the part of the appellee to allow the rooms to be so occupied. Appellant proposed to the appellee, or her agent, .that he would himself erect a smoke-stack on the side of the stable to be used by the coachman. The evidence is not clear that appellee refused tó allow this to be done, although -the lease expressly provides that the appellant himself was not to allow any alterations to be made in the premises. As to the tower and the machine house, the lease expressly provides that the wind-mill on the tower was not in order to supply water, and was not to be operated. The lease also provides that the appellee was to keep her gardener upon the premises, and a horse and wagon in the barn to be used by such gardener. There is some proof, tending to show that the appellant desired to use the machine house as a bath house. The proof shows that it was not built for, nor intended to be used as, a bath house. The proof also tends to show that appellant desired to make use of some part of the tower as a bath house. Some objection may have been made to the use of the tower and machine house as a bath house because they were never intended for such a purpose, but there is evidence tending to show that appellee did not prevent appellant from using the tower, or the machine house, for any legitimate purpose. The testimony of the appellant tends to show that he was locked out of the tower, and that he was not állowed to use the machine house, and that some restriction was placed upon his use of the rooms in the stable, so far as Such use would require the putting in of a stove, and thereby running the risk of the destruction of the stable by fire. Appellant insists most strenuously that, having been evicted from the use of the tower, the machine house and these rooms in the stable, he was not obliged to pay any rent at all for the use of the dwelling house which he occupied, or of the balance of the premises. This court has held that the question, whether the acts of the landlord amount to an eviction of the tenant is a question of fact to be determined by the jury. (Lynch v. Baldwin, 69 Ill. 210; Patterson v. Graham, 140 id. 531). “Acts of a grave and permanent character, which amount to a clear indication of intention on the landlord’s part to deprive the tenant of the enjoyment of the demised premises, will constitute an eviction.” (Hayner v. Smith, 63 Ill. 430; Keating v. Springer, 146 id. 481). “The rule is well settled that the wrongful act of the landlord does not debar him from a recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession, either actually or cqnstructively, or the premises rendered useless.” (Chicago Legal News Co. v. Browne, supra). The question, whether or not there was an eviction, was submitted to the jury under the instructions, and, by the judgments of the lower courts, this question of fact has been settled against the appellant. At the request of the appellant, the court instructed the jury that any act of a permanent character done by the landlord, and which has the effect of depriving the tenant of the use of the premises leased, or of a part of them, would amount to an eviction.
After the appellant began to complain of the condition of the dwelling house upon the premises, the appellee employed certain persons, architects and carpenters, to examine the premises-and see what repairs were necessary. The appellant seems also to have caused an examination to be made. The persons, so employed to examine the premises, made reports, but there is evidence, tending to show that the appellant himself refused to permit repairs to be made, unless a lease.should be given to him for the next year upon the same terms, substantially, as he was then occupying the premises, except that he was to occupy the rooms in the stable for the whole year, and to build a chimney at his expense, and to pay the water tax for the barn. In a written memorandum signed by him, after reciting the terms above stated for a lease for the coming year, appellant used these words: “If above accepted, will pay delinquent rent, and permit repairs.” This tends strongly to show that, although the appellee had taken measures to ascertain whether the premises needed repairs or not, the appellant himself was unwilling to have them made, unless he should be given a lease for the coming year upon terms demanded by him.
The questions of fact, whether or not appellant was entitled to damages on account of the defective condition of the premises occupied by him, or whether or not he had been evicted from any part of the premises, were submitted to the jury under proper instructions, and are not subject to review by this court. Much complaint is made in regard to instructions, and in regard to the rulings of the court upon the admission and exclusion of evidence, but after a careful examination of the whole record, we are satisfied that the instructions and the rulings of the court upon the evidence conform substantially to the views heretofore expressed in. this opinion, and that no errors were committed which operated to the injury of the appellant.
Accordingly, the judgment of the Appellate Court, affirming the judgment of the circuit court, is affirmed.
■Judgment affirmed.