specially concurring:
I agree that the lease in the instant case contains neither an express nor an implied covenant to continue to do business. I also agree that Fox v. Fox Valley Trotting Club (1956), 8 Ill. 2d 571, is not dis-positive here because the provisions in that lease were more restrictive than the use provision in the lease before this court and because the unique circumstances in Fox Valley are not present here. For example, there is no suggestion that the base rent here was less than the fair rental value for the building as it was in Fox Valley, the repairs and decorating performed on this building were not of a nature which restricted possible use of the premises or would be wasted if the tenant altered his plans, as was the case in Fox Valley, and unlike the circumstances here, in Fox Valley there were licensing restrictions which made it unreasonable to assume the parties ever intended for the tenant to conduct the one harness racing meet permitted annually to be held off the leased premises.
However, contrary to the views expressed by the majority, the lease in this case and the accompanying circumstances are indistinguishable from those in Simhawk Corp. v. Egler (1964), 52 Ill. App. 2d 449. The Simhawk lease provided for a base rental and a percentage of sales, and the tenant agreed to “use the premises only for the purpose of a shoe store engaged in the sale at retail of children’s shoes and footwear.” In this case, the lease provided for a base rental and a percentage of sales and the tenant agreed “to use and occupy the said premises as a retail store for the sale of goods, wares and merchandise, and not to use the same for any illegal purposes.” Unlike the Fox Valley case, the trial court and the majority here have relied solely on the phrase “and not to use the same for any illegal purposes” to distinguish this lease from the one in Simhawk. This is not a valid distinction. The phrase is essentially boilerplate language, commonplace in most commercial leases, which adds nothing of substance to this lease and is immaterial to the result reached.
The result reached by the majority is correct, however. This lease contains no express covenant to continue to do business and no such implied covenant can reasonably be found based on the terms of the lease, the surrounding circumstances, or the intent of the parties to the lease. That sums up the situation. The majority should have acknowledged that the Simhawk court reached the wrong result and declined to follow it. Instead, the majority has unfortunately relied on an untenable distinction between the two cases.
For the reasons discussed, I specially concur.