Opinion of the Court,
Gary, P. J.The only appellees having any interest are Charles H. and Edward C. Southworth, executors of John H. SouthAvorth, deceased, who by a lease under seal dated November 14, 1887, demised to the appellant a large store in Chicago for a term beginning April 1, 1889, and ending March 31, 1892.
The company was the occupant of the premises before the lease was made, and so continued until it took effect, and thereafter. The lease contained covenants by the company to pay all repairs to the building, ordinary and extraordinary, to keep the premises in good repair, and upon the termination of the lease in any Avay to yield up the premises in good condition and repair, loss by fire, and ordinary wear excepted, but that the company should not be required to repair loss or damage by fire unless such loss or damage should be caused by its fault or negligence, nor any loss or damage by reason of a cyclone, or the falling of the building from any cause other than the fault or negligence of the company.
The lease also provided that, in case of loss by fire so as to render the premises untenantable, the lease might be terminated by either party, unless it was mutually agreed to repair, and the same could be done in reasonable time so as to not utterly prevent the business from being prosecuted. Also, that in case the premises should be rendered untenantable by fire or other casualty, the lessor might, at his option, terminate the lease or repair them within thirty days.
January 10, 1890, a steam boiler in the premises exploded, injuring them to an extent requiring an expense of nearly §10,000 to repair.
The second day after the explosion the company sent a telegram to the deceased, to inform him that the building had been damaged, and saying: “ Will restore building at cheapest cost and charge to your account.” The appellee, Charles, replied: “ Father is not able to attend to this
business, so please arrange to have done the necessary repairs to restore building to its former condition.”
The authority of Charles to bind his father is one of the points in dispute. Another is, why the boiler exploded.
We do not find it necessary to determine the effect of the correspondence in evidence, nor to decide whether the provision relied upon by the appellant as to the premises having become untenantable applies to this case.
The court below seems to have been of the opinion that Charles had no authority to bind his father, and rested upon that. But in the mass of contradictory testimony put in as to the conduct of the engineer in charge of the boilers, as to the neglected condition of connecting apparatus which could be detected notwithstanding the explosion, as to the quality of the boiler itself, and in the probability that a boiler which had been under the control of the appellant for about four and a half years, would not have exploded i£ reasonable care as to its condition and management had been exercised, there is such a basis for imputing the explosion to the fault or negligence of the appellant, that a decision of the case in favor of appellees upon that ground, is not to be disturbed. lies ipsa loquibv,r is a saying applicable to a great variety of circumstances. 2 Thompson on Negligence, 1220.
This court applied it to this very explosion in the case of this appellant v. Burgess, 44 Ill. App. 27.
If the explosion was the result of the fault or negligence of the appellant, a very explicit agreement would be necessary to entitle it to charge the deceased, or his estate, with the cost of the repairs.
The appellant withheld the accruing rent until it equaled that cost, and then filed a bill to set off one against the other. We understand that the parties desire to present only the one question, “ who shall pay for these repairs ? ”
Being of the opinion that the Superior Court rightly decided it in favor of the appellees, we affirm the decree.