author: Mr. Presiding Justice Burke

text:
    Frank W. Cauley et al., Appellants, v. Northern Trust Company et al., Appellees.
    Gen. No. 40,528.

      Heard in the third division of this court for the first district at the December term, 1938.
    Opinion filed June 24, 1942.
    McGilvray, Vaughan, Tilley & Humphrey, of Chicago, for appellants; Franklin E. Vaughan, of Chicago, of counsel.
    Pam, Hurd & Reichmann, of Chicago, for certain appellees; Arthur M. Cox, of Chicago, of counsel.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for certain other appellees; Anan Raymond and Samuel W. Block, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 26, 1937, Frank W. Cauley, Rosalie Hill Cauley, James B. Cauley and 1550 Hinman Avenue Building Corporation filed a complaint at law in the superior court of Cook county against the Northern Trust Company, a- corporation, seeking a judgment for $25,000 and the income accrued thereon from May 8, 1934. Plaintiffs set forth portions of articles 6 and 7 of a 99-year lease on real estate in the city of Evanston, and allege that the Cauleys were the owners and holders of all of the capital stock of the 1550 Hinman Avenue Building Corporation, an Illinois corporation, and as such were interested in the subject matter and in the right to the relief sought and therefore joined as plaintiffs with the building corporation. On June 3, 1937, the Northern Trust Company filed its motion to dismiss, setting forth nine reasons. On December 30, 1937, plaintiffs were given leave to amend by (1) changing the complaint from law to equity ; (2) discontinuing the building corporation as a plaintiff and naming it as a defendant; (3) joining as additional plaintiffs the members of the firm of McG-ilvray, Eames, Vaughan & Tilley; and (4) naming as additional defendants Pure Oil Company, a corporation, the North Side Cleaners & Dyers Company, a corporation, Loch, Inc., a corporation, Julius Erlenbach, doing business as Melanie Beauty Salon, Ruth Tooze, doing business as the Book Box, Northwestern Realty & Building Company, Inc., a corporation, and Nelson Ewings. The amended complaint was filed on December 30,1937, and recited that plaintiffs sued also for the benefit of any other creditors of the building corporation who might desire to become parties plaintiff. There was no allegation that the creditors had recovered a judgment against the corporation. Plaintiffs sought to recover from the Northern Trust Company, depositary under the 99-year lease, the sum of $25,000 and the income thereon, and to recover from the additional defendants, who were alleged to be in possession of various parts of the premises since prior to June 8, 1937, the fair rental value of the various portions of the premises so occupied. It was alleged that the corporation had been dissolved more than two years prior to the commencement of the action, and plaintiffs asked that a receiver be appointed and that the various sums sought to be collected be paid to the receiver for the benefit of the creditors of the corporation and its stockholders. On May 11, 1938, separate motions to dismiss, one by the Northern Trust Company and the other by the occupants of the premises, were sustained. Pursuant to leave of court, plaintiffs filed a second amended complaint alleging* 'that the “plaintiffs hereby dismiss the cause as to 1550 Hinman Avenue Building Corporation,” although no order of dismissal appears to have been entered. The lessors, Libbie B. Hill, Jean Patterson Hill and Matson B. Hill, were not made parties to the original complaint or the amended complaint. Jean Patterson Hill and Matson B. Hill, who had also acquired the rights of Libbie B. Hill, were named as parties defendant to the second amended complaint. No relief was prayed against them. On July 12, 1938, the motion of the Northern Trust Company to dismiss the second amended complaint was sustained, and on July 14, 1938, a similar motion by the occupants, was sustained. Plaintiffs elected to stand upon the second - amended complaint and it was dismissed. Jean Patterson Hill and Matson B. Hill, lessors, died after the filing of the second amended complaint. On the verified motion of plaintiffs, the court, on September 16, 1938, dismissed the cause as to them. Notice of appeal was filed by the plaintiffs on September 19, 1938.

The second amended complaint, which for convenience we will hereinafter call the complaint, alleges that on May 12, 1926, Libbie B. Hill, a widow, Jean Patterson Hill, a spinster, and Matson B. Hill, divorced and not remarried, as lessors, executed a certain indenture of lease with Morris E. Feiwell, as lessee, wherein they demised for a period of 99 years commencing with June 1, 1926, and ending May 31, 2025, certain premises in Evanston, and that the lease was duly executed, acknowledged and recorded; that it was provided in the lease among other things, as follows:

“Article Sixth
Construction of New Building
“Section 1. Lessee covenants, as security for the payment of the rent on or before June 1, 193.1, to erect upon said premises a first class modern building, suitable for the purposes specified in said Lease, not less than two stories in height, to cost not less than $125,000.00; said building to be ready for occupancy on or before June 1, 1931 and Lessee to pay all costs and expenses in any way connected with its construction and to keep demised premises and building free from all mechanics’ and similar liens and to deliver to Lessors and The Northern Trust Company an Architect’s Certificate certifying that the building has been built pursuant to the provisions of Lease and paid for in full.
“Sec. 4. Lessee agrees, upon delivery of this Lease to deposit with The Northern Trust Company, as Trustee for Securities cash and/or securities of market value of not less than $50,000.00 to be held by said Trustee for use in the construction of such new building and/or for other purposes, as hereinafter provided.
“Sec. 5. If Lessee desires to postpone the erection of new building for a period of five (5) years beyond June 1, 1931, he may do so by depositing with said Trustee, on or prior to June 1, 1931, additional cash and/or securities of a market value of $25,000.00, which additional cash ‘and/or’ securities shall be held by Trustee under the same conditions.
“Sec. 8. Lessee may wreck the building now on premises any time after making the deposit of cash and/or securities, providing that at the time of the removal of said building Lessee shall not be in default under this lease; in the event the present building is wrecked, the materials shall belong to Lessee.
“Article Seventh
Deposit of Securities
“Lessee covenants before tearing down the present building or any building at any time on said premises and before commencing any work on a new building, to deposit with The Northern Trust Company, as Trustee, cash and/or securities approved by said Trustee, of an additional market value equal to the estimated cost of the building to be erected, provided that in making* such deposit Lessee shall be given credit for the cash and/or securities theretofore deposited with the Trustee,- provided, further, that if Lessee shall procure from any reputable bank, trust company or loan house having a paid up capital of not less than $750,000.00, a valid commitment to make a loan sufficient to erect said new building and shall agree to accept said loan and shall execute the mortgage or trust deed and notes or bonds to evidence the same, then the amount of securities to be deposited shall be decreased by the amount of the net proceeds of said loan; the cash and/or securities so deposited with the Trustee shall be held, applied and disposed of by said Trustee as follows:
“ (a) Until default by the Lessee under said Lease, the net income received by the Trustee, after deducting costs and charges, shall be paid over to Lessee; upon the completion of a new building in accordance with Article Sixth and the payment by Lessee of all expenses incurred in the erection thereof, so that said premises and building shall be free and clear of all liens and if Lessee is not then in default, the cash and/ or securities then on deposit shall be paid over to Lessee upon payment of the Trustee’s costs.
“(b) When Lessee shall have commenced to construct a new building under Article Sixth and shall have proceeded in such construction to a point where the cash and/or securities in the possession of the Trustee shall be sufficient to pay for the completion of said building, Lessee shall be entitled to have them applied by Trustee, upon Architect’s Certificates, to the cost of completing said building; Trustee shall not be required to examine into the competency of any architect or to be responsible for the proper application of said money.
“(c) If Lessee shall make default in any of the payments required to be made to the Lessors under the terms of said Lease while said cash and/or securities are on deposit with Trustee, Lessors shall, at their option, have the right to receive from Trustee an amount or amounts equal to the payments in regard to which Lessee is in default and in each such case Lessee covenants within ten (10) days after written notice, to deposit with Trustee, additional cash and/or securities approved by it of market value to make good any such depletion.
“(d) In the event this Lease is terminated by reason of any default of Lessee, Lessee covenants that he will indemnify Lessors against all loss suffered by them during each and every semi-annual' period within the original term, in case the net rental or proceeds received by the Lessors from the use .of said premises, shall be less than the net rent which would have been received under this Lease and Lessee covenants that if this Lease be terminated while any of said fund remains on deposit with the Trustee, the Trustee, at Lessors ’ election, shall retain possession of all of said funds, together with income, as additional assurance for the performance of the covenants of Lessee in this paragraph and after such termination, Lessee shall not be entitled to any income from said fund but said fund and income shall be retained by Trustee until any period when Lessors shall have suffered any loss, as above, and Legsors shall, from time to time, as loss is suffered, be entitled, at their election, to have applied such amount of income as shall be necessary to make good such loss; or at Lessors’ election, said Trustee may apply said fund to the reimbursement of Lessors for any such loss and said Trustee shall continue to hold such fund and income and to apply same from time to time during the entire term of this Lease, returning any overplus at the end of said term, after payment of all losses of Lessors, to Lessee; or -Lessors, at their option, as a separate and distinct remedy, in the event of the termination of this Lease for default of Lessee, shall have the right, at the time of such termination, to receive and retain all such funds on deposit with said Trustee, together with income, and in the event of such election by Lessors, they shall have the right to receive same as their property by way of liquidated damages, free and clear of all claims of Lessee.
“ (e) If Lessee fails to erect and pay for a building under Article Sixth, Lessors have the right to •forthwith demand and receive all cash and securities then on deposit with Trustee and to retain the same as agreed liquidated damages by reason of such default by Lessee.
“(f) Lessee has the right, while not in default, to withdraw securities on deposit with Trustee, upon substituting other securities of equal value.
“(g) Lessee‘agrees to make good, by deposit of additional securities, any depreciation in value of securities on deposit.
“(h) Trustee, upon ten (10) days written notice to Lessee, has authority to sell any and all securities on deposit provided it is necessary to secure money to carry out the provisions of this Lease; in ascertaining the amount of money required to pay for any buildings or repairing same, Trustee may rely upon the sworn statement of the architect in charge.
“ (i) All charges of The Northern Trust Company or its successor, as Trustee, shall be paid by the Lessee.
“Article Twelfth :
Re-entry upon Default
“Sec. 1. Provides that if Lessee makes default in the payment of rent and such default continues for thirty (30) days after notice in writing to Lessee, or if Lessee makes default in any other covenants and such default continues for sixty (60) days after notice in writing, it shall be lawful for Lessors, at their election, to declare said term ended and to re-enter said premises and to expel Lessee and every other person in the same and to re-possess and enjoy said premises each in their first estate, without working a forfeiture of the rents to be paid and covenants to be performed by the Lessee during the full term of this Lease; in the event of such termination, Lessee covenants to indemnify Lessors from any loss arising from such termination and to pay to said Lessors, after such termination and at the end of each half year, the difference between the net income actually received by Lessors from said premises and the rent agreed to be paid under this Lease, together with expense of re-letting and repairing the improvements on said premises.
“Sec. 2. Lessee waives any demand for possession of said premises in the event of the forfeiture of said lease and agrees that written notice of default herein provided for may be given in any of the ways provided in Article Twenty-Third and giving such notice in any of said ways shall constitute sufficient notice for the purpose of declaring a forfeiture under the terms hereof where a notice of default is required to be given by said Lessors.
“Sec. 3. It is covenanted that if the Leasehold estate shall be conveyed by mortgage or Trust Deed, and if the Lessors shall be notified of such fact and of the name and address of the mortgagee or trustee, as long as such instruments are in force, notice of any default shall also be given to the mortgagee or Trustee and such mortgagee or Trustee may, within such time, remedy and default on the part of Lessee and otherwise comply with such notice.”
“Article Twenty-Third:
Manner of Serving Notice
“Notices required under the terms of this Lease shall be sufficient if served as follows:
(1) By delivering copy of such declaration, demand or notice to the Lessors or Lessee, or
(2) By sending a copy of such declaration, demand or notice by registered mail to Lessors or Lessee at such address as the one party may have theretofore furnished to the other party in writing for such purpose; or if no such address shall have been furnished then to the party at the last known address.
“All notices to or demands upon the Lessors or Lessee, are hereby required to be in writing and in any case the declaration, demand or notice may be signed, made, given or served in person or by agent, Attorney or servant.
“If there is more than one Lessor or more than one Lessee, any declaration or notice served upon one and addressed to all shall be sufficient; in the event of the existence of a mortgage or Trust Deed and notification thereof to the Lessors, the mortgagee or Trustee may be similarly served, either by delivery or registered mail; the provisions of this Article, as to service of notice, shall also apply to service of notice, demands and declarations by The Northern Trust Company.
“In each and every case, such service, in any of the modes provided in this Article, shall be sufficient and effectual for all purposes and no other demand or notice or method or manner of giving or serving the same shall be required.”

The complaint recited that “for further details of the various provisions of said lease, plaintiffs refer to the record thereof and to one of the duly executed triplicate originals thereof ready to be produced in court upon the hearing hereof.” It alleges that - at the time of the execution of the lease, the lessee, Morris E. Feiwell, deposited with the Northern Trust Company the sum of $50,000 in cash, cash and securities or securities of the fair market value of $50,000, to be held under the terms of the lease; that on November 28,1928, the lessee, by instrument in writing, assigned to plaintiff Frank W. Cauley, all interest of the lessee under the lease, together with all interest in the cash or securities deposited with the trust company, in consideration of the payment to him by the assignee of $203,729.46; that the assignment was duly acknowledged and recorded; that on February 11, 1929, plaintiff, Frank W. Cauley, assigned to the 1550 Hinman Avenue Building Corporation, a corporation created for the purpose of taking title thereto, all of lessee’s interest in said lease; that after November 28, 1928, Frank W. Cauley, and thereafter the said building corporation entered into certain contracts with various persons providing for the removal of the old buildings located on the premises, for the construction of a new building and entered into a valid commitment with Peabody, Houghteling- & Company, a loan house having a paid-up and unimpaired capital surplus in excess of $750,000, for a building loan in the amount of $1,125,000, all in accordance with the terms of the lease; that after the removal of said old buildings the building corporation caused said premises to be excavated and foundations for the proposed new building to be installed at an expense to the building corporation of $81,681.17; that after the completion of said excavations and foundations, said Peabody, Houghteling & Company became insolvent and incapable of carrying out the loan contract, and that by reason of general conditions throughout the United States, including Cook county, it was impossible to procure funds to complete the building immediately and the completion thereof was thereby delayed; that prior to May 1934, Libbie B. Hill died, and between May 1 and May 8, 1934, Matson B. Hill and Jean Patterson Hill, claiming to be the owners in fee simple of the premises described, and of all of the lessors’ interest in the lease, while such lease was in full force and effect and not in any wise terminated or canceled, reentered the demised premises and put out all occupants and repossessed the premises and thereby wrongfully and improperly evicted the 1550 Hinman Avenue Building Corporation therefrom, and by said wrongful acts seized and converted to their own use the improvements, consisting of excavations and foundations installed at the cost and fair market value, at the time of such eviction, of $81,681.17, and that the said Matson B. Hill and Jean Patterson Hill have, since then wrongfully converted to their own use said excavations and foundations and used the same in the construction of other buildings on the premises; that on May 8,1934, there was in the possession of the Northern Trust Company, cash or cash and securities, or securities of the market value of $25,000, the cash and securities originally deposited having been, prior thereto, diminished by $25,000 paid to said lessors on account of ground rent under the lease; that by the wrongful acts' of Matson B. Hill and Jean Patterson Hill performed between May 1 and May 8, 1934, the lessors violated the covenants by them required to be performed as to quiet possession and peaceful enjoyment of the premises, and wrongfully caused a loss to' the 1550 Hinman Avenue Building Corporation, or to the plaintiffs, the Cauleys, of the amount of their original investment, to-wit, $203,729.46, and a further loss by the building corporation in the improvements of the premises, in the amount of $81,681.17, and that by said breach of said covenant, Matson B. Hill and. Jean Patterson Hill became in default under the terms of the lease and thereby waived, released and forfeited all right, title and claim to said cash or cash and securities in the amount of $25,000 on deposit with the Northern Trust Company; that on or about June 16, 1932, a decree was entered in the superior court of Cook county, in the case of People ex rel. v. 1550 Sin-man Avenue Building Corporation, No. 57278, wherein it was decreed that the building corporation be dissolved; that by the indenture of lease and the assignments thereof, an estate in lands and realty became vested in the building corporation, being a leasehold estate for 99 years expiring May 31, 2025; that at the time of the entry of the decree of dissolution, the leasehold estate was vested in the building corporation, and by virtue thereof the building corporation was entitled to a large amount of uncollected assets; that ■there was due the building corporation large sums of money from various individuals and corporations; that upon said dissolution the leasehold estate and all assets of the corporation became vested in plaintiffs, the Cauleys, as owners of all of the capital stock of the corporation, and that the plaintiffs are now the owners of all of the capital stock and the owners of, and entitled to, the leasehold estate and all rights and appurtenances; that since the entry of the decree of dissolution additional large sums of money have become due to plaintiffs as such stockholders, and further sums will continue to become due to them by reason of their ownership and title to the leasehold estate; that at the time of the entry of said decree of dissolution, the building corporation was indebted in large amounts to certain of the plaintiffs, as hereinafter set forth, and to numerous other individuals and corporations whose names are unknown to plaintiff; that upon the vesting of the title to the leasehold estate in the stockholders of the building corporation, said stockholders acquired the same, burdened with all claims then existing and thereafter arising against the corporation as a previous owner of said leasehold estate, and that the stockholders now hold title to the estate primarily for the benefit of the creditors of said building corporation, and secondarily for themselves as such stockholders; that if by reason of the decree of dissolution the building corporation is precluded from bringing suit to enforce the collection of its assets, this court has the right and duty to appoint a receiver to collect all sums so due and hereafter falling due either to the corporation or stockholders, by virtue of their title to the leasehold estate, and that said sums should be collected and conserved as a trust fund for said creditors and stockholders; that the building corporation, by reason of its title, prior to its dissolution, to said leasehold estate, became and is indebted to the plaintiff, Frank W. Oauley, on its promissory note dated June 30, 1931, in the amount of $30,000, due on or before one year after date, with interest at 5 per cent; that said corporation, by reason of its ownership of said leasehold estate, is indebted to the plaintiffs, Franklin E. Vaughan, Earle F. Tilley and A. G. Humphrey, copartners, doing business as McGil-w™y, Vaughan, Tilley & Humphrey, upon its promissory note dated June 30, 1931, in the amount of $1,825, due on or before one year with interest at 5 per cent; and also upon open account for cash advanced and professional services rendered to the corporation in the conservation and protection of said leasehold estate, in the sum of $4,218.10; that plaintiffs, the Oauleys, are the owners of all the stock of said building corporation and hold the same and the leasehold estate subject to the claims and equitable liens of all creditors of the corporation, and are entitled to share in the distribution of its assets, which may be collected, after the payment of all claims to such creditors; that on March 10, 1937, formal demand was made on the Northern Trust Company for the payment to plaintiffs of the cash, or cash and securities, in the amount of $25,000 on deposit under the terms of the lease on May 8, 1934, that said defendant has refused and neglected to comply with said demand and to pay over to the building corporation, or its agents, attorneys or stockholders, the said cash and securities, and that there is due from the Northern Trust Company, in addition thereto, all income upon said cash and securities from May 8, 1934; that the paragraphs quoted from the lease are the only paragraphs of the lease having to do with or referring to the deposit of securities, reentry upon default and the manner of serving notice; that at the time of the wrongful eviction, certain amounts of rent were due from lessee to lessors, and certain taxes were in default; that under the provisions of article 12 of the lease, the lease remained in full force, irrespective of any defaults on the part of the lessee until lessors should exercise their election to declare said term ended and that the lessors did not, prior to said wrongful eviction, in any manner evidence their election to terminate the said term in accordance with the provisions of the lease; that since the wrongful eviction of the building corporation, various other persons and corporations have from time to time been in possession of the dis-mised premises, or parts thereof; that at the present time Pure Oil Products Company, the North Side Cleaners & Dyers Company, Loch, Inc., Julius Erlen-bach, doing business as Melanie Beauty Salon, Ruth Tooze, doing business as the Book Box, Northwestern Realty & Building Company, a corporation, and Nelson Ewings are in possession of various parts of the premises ; that they have been in possession since prior to June 8, 1937, with the exception of Nelson Ewings; that on or about June 8, 1937, formal demand was made on all of the said persons and corporations, with the exception of Nelson Ewings, that they pay to the building corporation or its stockholders, after the receipt of said notice, a reasonable rental for the premises occupied by each of them; that Nelson Ewings came into possession of a part of the premises after June 8, 1937, at a time when all of the matters above set forth were of record.

Separate briefs have been filed on behalf of the Northern Trust Company and on behalf of the occupants of the premises. In passing on the points raised by the motions to dismiss, we recognize that we are required to assume the truth of the facts well pleaded. The motions do not, however, admit conclusions of law or conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest. We also have in mind the rule that a pleading is taken most strongly against the pleader. Defendants maintain that the sections quoted from the 99-year lease and the allegations as to wrongful eviction, fail to show any right in the lessee or the plaintiffs to the fund originally deposited with the Northern Trust Company; that plaintiffs failed to show any claim against the Northern Trust Company for the fund deposited with it as trustee; that the complaint fails to allege facts showing the 99-year lease to be in full force and effect, and therefore, fails to disclose any right of recovery. Plaintiffs insist that the sections quoted from the lease and the allegations of wrongful eviction were sufficient to disclose a right in the lessee and, therefore, in the plaintiffs, to recover the fund on deposit with the Northern Trust Company, and that the lease, being in full force and effect, the complaint discloses a clear right of recovery against the persons and corporations in possession of the premises for the use and occupation thereof. The complaint admits that at the time of the alleged eviction of the lessee, defaults existed as to the failure to erect a building, in the payment of rent and in the payment of taxes. Plaintiffs concede that under these circumstances the lease gave to the lessor the right to terminate the lease. Plaintiffs contend, however, that the lessors failed to exercise such right, but chose instead to forcibly eject the lessee. Plaintiffs argue that considering the general conditions which existed from 1929 until the time of the alleged eviction in May 1934, it is quite possible that lessors felt it inadvisable to terminate the lease, preferring to keep it in full force. They urge that under these circumstances, lessors had no right to forcibly eject the lessee. It will be noted that the eviction claimed by the plaintiffs in the instant action is not a constructive, but an actual eviction. The complaint is silent as to how the corporations and individuals from whom a “fair rental” is asked, came into possession. In their brief plaintiffs state that the co;mplaint contains no allegation or inference that these parties are lessees of the Hills. Despite the fact that there is no such allegation, it is plain to us that these tenants are in possession by authority of someone claiming the right to give them possession other than the plaintiffs, Feiwell, or the Hinman Avenue Building Corporation. Section 1, of ch. 80, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 72.01] (the Landlord and Tenant Act) provides “that the owner of lands, his executors or administrators, may sue for and recover rent therefor, or a fair and reasonable satisfaction for the use and occupation thereof, by a civil action, in any court of competent jurisdiction in any of the following cases: . . . Second. "When lands are held and occupied by any person without any special agreement for rent. ...” The effect of this clause is to permit the owner to waive the tort and sue a trespasser in assumpsit without showing the existence of an express or implied contract. Plaintiffs, however, must be the owner entitled to possession. When one party occupies the premises of another without any agreement for the payment of rent the law implies a promise on the part of the occupant to pay the owner for the use and occupation thereof a reasonable rental value.

We agree with defendants that the complaint does not allege any facts showing any right on the part of plaintiffs to claim the fund which it is alleged was on deposit with the trust company on May 8, 1934, three years prior to the commencement of the suit. From the provisions of articles 6 and 7 of the lease, it appears that the lessee agreed that he would on or before June 1, 1931, construct a building on the demised premises, to cost not less than $125,000, and that in the event of his failure to complete and pay for the building within the time specified, the lessor should have the right to demand and receive the cash and securities on deposit with the trustee. It is admitted that at the time of the alleged eviction the lessee was in default for failure to erect a building, as well as in the payment of rent and taxes, and there are no facts alleged showing any waiver of this right; nor did plaintiffs allege that the lessors made any agreement extending the time within which the lessee could erect the building on the premises. Passing to the allegations as to the alleged wrongful eviction, it will be noted that the complaint states that the owners, “while said lease was in full force and effect and not in any wise terminated or cancelled, reentered the demised premises and put out all the occupants of the same and repossessed said premises and thereby wrongfully and improperly evicted said 1550 Hinman Avenue Building Corporation therefrom.” By article 12 of the lease, in the event of default for nonpayment of rent for 30 days after notice to the lessee, or default in any other covenant for 60 days after notice to the lessee, it was agreed it was lawful for the lessors at their election to declare the term ended and to reenter the demised premises. By section 2 of the same article it was provided that “the lessee waives any demand for possession of said premises in the event of forfeiture of said lease, and agrees that written notice of default herein provided for may he given in any of the ways provided in article 23rd, and the giving of such notice in any of said ways shall constitute sufficient notice for the purpose of declaring a forfeiture under the terms hereof where a notice of default is required to be given by said Lessors.” The complaint is silent as to whether notice of default was served in accordance with the lease. It is not alleged that notice was not served. The only charge in the complaint is the failure of lessors to exercise their election. In their brief plaintiffs assume that the requisite notices of default had been served and that the 30 or 60-day period had elapsed. Plaintiffs, however, argue that it was necessary to serve two sets of written notices, first a notice of default, and after the 30 or 60-day period another notice “to declare the said term ended.” For this construction, plaintiffs rely upon article 23 of the lease, and urge that the term “declaration” appearing throughout this article can refer to nothing except the declaration ending the term of the lease, and that no declaration ending the term was served in accordance with article 23. They assert that the lessors utterly failed to end the term by a written declaration under article 23, but took the law into their own hands and forcibly ejected the lessees from the premises, and that they did this at a time when the lease was in full force and effect; that when the lessees were thus forcibly ejected, their obligation to pay rent thereafter or to erect a new building on the premises thereafter was terminated, and that thereafter there could be no forfeiture for nonpayment of rent. We are unable to agree with the contention of plaintiffs. Article 23 does not require the lessors, when they “declare said term ended” to do so by written declaration. We agree with defendants that the allegation of the complaint that “the lease was in full force and effect and not in any wise terminated or cancelled” is a pure conclusion of the pleader. We also agree with the contention of defendants that the questions as to the construction of the lease, whether it requires the service of two notices in writing and whether it was terminated or is still in full force and effect, cannot be determined without having the lessors in court as defendants.

The complaint admits that the charter of the building corporation was dissolved by a decree of the superior court on June 16, 1932, more than a year after the lessee was required to complete and pay for the building. At the time the building corporation was dissolved, and for two years thereafter, the lessee had done nothing about constructing the building except to make an excavation on the demised premises and to construct some foundations. This was the status of the demised premises when, between May 1 and May 8, 1934, it is alleged the lessors reentered the premises. The property therefore remained with nothing* but the excavation on the demised premises from 1928 (when it is alleged the plaintiffs entered into contracts for the construction of the building) until May 1934. It appears, therefore, that the premises were vacant at the time of the alleged wrongful eviction, and that the lessee corporation had been dissolved for nearly two years. Notwithstanding* these circumstances, it is alleged that the lessors “put out all occupants of the same and repossessed said premises, and thereby wrongfully and improperly evicted said 1550 Hinman Avenue Building Corporation therefrom.” It is apparent that as there was nothing but an excavation on the premises, there could not have been any 11 occupants ’ ’ on the same. Furthermore, it is apparent that the building corporation could not have been in possession of the premises, first, because it had been dissolved nearly two years before, and second, because the premises were vacant. These allegations contra-diet one another. Plaintiffs then argue that “when lessees were thus forcibly ejected from the premises, their obligation to pay rent thereafter or to erect a new building on the premises thereafter was terminated by the act of the lessors.” At this time the building corporation had been dissolved for almost two years. The references to its eviction and to its obligation are, therefore, fictitious. The corporation, as an assignee of the lease, was required to construct a building by June 1, 1931. After destroying the existing building it not only failed to construct the new building, but only dug an “excavation” and built foundations and then abandoned the premises from 1928 to 1934, a period of six years, during which it went out of existence as a corporation. As hereinbefore stated, plaintiffs rely on an actual eviction. In Patterson v. Graham, 40 Ill. App. 399, this court said: “An actual eviction is an actual expulsion of the tenant out of all or some part of the demised premises, a physical ouster or dispossession from the very thing granted, or some substantial part thereof.” Defendant suggests that as the lessee corporation had been dead for nearly two years, it would take considerable power of imagination to conceive the wrongful eviction of the ghost of this corporation from “a hole in the ground,” referred to in the complaint under the more dignified appellation of an excavation. We are of the opinion that the complaint fails to show any right in the plaintiffs to the fund deposited with the Northern Trust Company, or to require the remaining defendants to pay rent for the occupancy of the premises.

The parties present other points for our consideration, including the contention by plaintiffs, opposed by defendants, that the instant action was maintainable even though brought more than two years after the dissolution of the 1550 Hinman Avenue Building Corporation. The points discussed dispose of the case, and we will not extend the opinion by passing on the remaining points. For the reasons stated, the decree of the superior court of Cook county is affirmed.

Decree affirmed.

Hebel and Kilby, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Naprawa and Bridget Naprawa, Appellees, v. Chicago Flat Janitors’ Union, Local No. 1 and William C. Quesse, Appellants.
    Gen. No. 41,956.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed June 24, 1942.
    Joseph A. Bicker, of Chicago, for appellants.
    Maximilian J. St. George, of Chicago, for appellees.
   Behearing Opinion.

Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 10, 1940 John Naprawa and Bridget Nap-rawa, his wife, filed a complaint in the circuit court of Cook county against Local No. 1 of the Chicago Flat-Janitors’ Union and William C. Quesse, alleging ownership of the premises at 2114-22 N. Kedzié Boulevard, Chicago, consisting of a three-story brick and English basement court apartment building, containing 49 four and five room apartments and 2 shops; that the premises were subject to a mortgage indebtedness of $70,000, payable at the rate of $625 a month; that since September 28, 1939 they (plaintiffs) had been in possession, control and management of the premises, and that plaintiff, John Naprawa had been doing the janitor work. The complaint contains 11 paragraphs and a prayer, paragraphs 5 to 11 reading:

“5. That immediately upon taking possession of said premises, plaintiffs had trouble and difficulty with defendants in that defendants refused to permit plaintiff, John Naprawa, to act as janitor for said premises, and that only after to-wit: November 7, 1939, when said John Naprawa paid to defendants the sum of $50.00 did defendants permit said plaintiff to act as janitor for said premises; that defendants continued thereafter to bother, harass and disturb plaintiffs, and made demands upon them for the payment of additional sums, all contrary to equity and good conscience, under the threat of picketing and calling a strike against the premises.
“6. That on April 9, 1940 was the last time the defendants and particularly said William Quesse, who was and is business agent of said Chicago Flat Janitors’ Union Local No. 1, informed plaintiff that unless plaintiffs engaged a union janitor to take care of said premises, they would immediately cause said premises to be picketed.
“7. That in the early morning of April 10,1940, defendants did cause said premises to be picketed and placed at said premises their servant and agent to act as picket, and to prevent delivery of goods and merchandise into said building, and to prevent any work from being done upon said premises; that defendants have prevented and are preventing delivery to the tenants in said premises of milk, laundry and food and other goods, wares and merchandise and have prevented painters and decorators from doing painting and decorating in and about said premises, and have called off the painters and decorators who were engaged by plaintiffs to paint and decorate said premises for various tenants requiring same.
“8. That unless restrained by an injunction of this court, defendants will continue to picket said premises and to do the acts hereinabove set forth, all of which acts will result in a complete destruction of plaintiffs’ business and prevent them from making said monthly payments on account of said mortgage, and will inflict irreparable damage and injury upon them.
“9. That because of the nature of the illegal acts of defendants and their methods employed by them to accomplish their scheme and purpose, and the great number of persons who have combined with them in said illegal, unlawful and oppressive combination and confederation, plaintiffs have suffered and are suffering irreparable damage and have no adequate remedy at law, and any attempt to attain such remedy would involve a multiplicity of suits.
“10. That plaintiffs are informed and believe, and therefor charge the fact to be, that defendants are not financially responsible and have no property upon which an execution could be levied or from which a judgment could be collected.
“11. That plaintiff, John Naprawa, is well able and capable and desires to act as janitor for said premises, and does not require the services of any other janitor.” Plaintiffs prayed that a writ of injunction issue restraining the defendants, their officers, agents and attorneys from “calling a strike against and picketing or causing said premises herein-above described to be picketed, and enjoining and restraining defendants from preventing or causing to be prevented the delivery of any goods, wares and merchandise to said premises, and enjoining and restraining defendants from calling any strike on said premises or preventing or interfering with any painters, decorators or workmen from working on said premises, and enjoining and restraining defendants from molesting, harassing or interfering with plaintiff, John Naprawa, from acting as janitor of said premises.” On April 22, 1940, pursuant to leave granted, plaintiffs filed an amendment to the complaint consisting of two additional paragraphs, known as 7-a and 7-b, which read:
“7-a. That defendants did and accomplished the things set forth in paragraph 7 of the original complaint by placing and maintaining a picket at the rear of said premises and that said picket stopped all persons endeavoring to make said deliveries, and walked back and forth in the rear of said premises displaying a sign that the owner of said premises was unfair to union labor and to the Janitors’ union, and that said picket falsely told and informs all persons desiring to make deliveries that the plaintiffs were employing non-union labor, whereas in truth and in fact the plaintiffs were not employing non-union labor as janitor but that the plaintiff, John Naprawa himself, being half owner of said premises together with the other plaintiff, was doing the janitor work on said premises, as he had a right to do; that said picket falsely informs all persons making deliveries of milk, food, coal, laundry and other goods and merchandise, that plaintiffs were unfair to the Janitors’ Union in that they were employing non-union janitor, thereby preventing-delivery of such milk, food, coal, laundry and other goods and merchandise, to the tenants of said premises ; that by the false representation to the decorators and painters who were working on said premises, that plaintiffs were employing non-union janitor, they caused said painters and decorators to refuse to do any further work on said premises; that when any premises in Chicago, Illinois are picketed, as aforesaid, all union decorators and painters, and all deliveries of goods, wares and merchandise to said premises are thereby prevented; that the mere fact that the premises are being picketed as aforesaid is sufficient to prevent the delivery of any goods, wares and merchandise and the doing of any painting and decorating to and in said premises; that there is not involved in this matter a labor question, namely: the employment of a union janitor on said building, as the owner of said building has been, is and wishes to act as janitor therefor.
“7-b. That defendants, by means of the foregoing facts and because of the premises, have been and are trying to force plaintiff John Naprawa, to join said-Chicago Flat Janitors’ Union, Local No. 1, and have told him that unless he joins said union they will continue to picket said building and to call off all laborers and decorators on said premises; that said John Nap-rawa does not intend to join said union, nor has he ever had any intention to join said union, but that he wishes to be left alone by defendants to take care of said premises and to act as janitor therein.”

Defendants answered and denied that the premises were owned solely by the plaintiffs, asserted that plaintiff John Naprawa discharged a member of the defendant union without cause; that when requested to reinstate the member so discharged he (John Nap-rawa) requested that he be permitted to become a member of the union; that Naprawa paid to the union the sum of $50 on account for his initiation fee and promised to pay the balance within 60 days, and that at the time of filing the complaint Naprawa owed a balance of $180 on his initiation fee and dues. The answer further stated that defendant William C. Quesse informed plaintiffs that the union would require them to reinstate the discharged janitor or pickets would be placed in the vicinity of the building. The answer admitted that a member of the union had been stationed on the sidewalk about the premises and had peaceably advised and persuaded other persons to cease and abstain from performing any work or labor for the plaintiffs, and had advised such persons that plaintiffs were unfair to the members of the union. Defendants denied that the union or any member or representative of the union intimidated or coerced plaintiffs or any employee of plaintiffs, or any person making deliveries to the premises. The answer also asserted that prior to September 28, 1939, a member of the union was employed as a janitor of the building and that on April 10, 1940 there existed a labor dispute between the union and plaintiffs and that the conduct of the members of the union in connection with the picketing of the building was entirely lawful. The answer further denied that plaintiffs would suffer irreparable loss or damage by reason of any acts committed by defendants, and denied that defendants were financially irresponsible and unable in law to respond should a judgment for damages be rendered against them. On April 11, 1940 plaintiffs moved for a temporary injunction. Consideration of this motion was postponed from time to time while the parties awaited the handing down of an opinion by the Supreme Court of the United States in the case of American Federation of Labor v. Swing. In the meantime, the pickets were withdrawn. The case ■ came on for trial on June 30, 1941.- From April 11, 1940 to the day of trial there was no attempt to picket.

Plaintiff, John Naprawa, testified that he came to the United States from Poland in 1912; that he was an American citizen; that he could read and write English but not very well; that plaintiffs paid $95,000 for the property, $25,000 of which was cash; that the balance in the form of a mortgage was being paid in instalments of $625 per month; that plaintiffs moved into the premises on September 3, 1939; that a union janitor was then performing the janitor work; that he (Naprawa) decided to do the janitor work himself; that he gave notice to the janitor that he, Naprawa, would dispense with the union janitor’s services beginning with November 1, 1939; that the janitor called the. business agent of the union, William C.'Quesse; that the business agent placed a picket at the front of the building and one at the alley; that the picketing continued for seven days; and that the witness talked to Quesse, who told witness he “had to join the union.” Witness further testified that he did not want to join the union; that he owned the building; that he gave Quesse $50; that on delivery of the $50 Quesse left and the pickets were withdrawn. Witness further testified that he allowed the janitor to occupy an apartment in the building during the month of November 1939, without paying rent; that he also paid the janitor $50; that he did not have any trouble from early in November 1939 until April 1940; that about April 9, 1940, Quesse came around and asked him for more money; that when he refused to pay, two pickets were again placed in the vicinity of the premises, that they carried signs; and that the picketing continued for two days. Witness also testified that on the occasions when the pickets were present, painters and decorators employed to work in the building were informed by the pickets that they could not work; that such painters and decorators did not work; and that the pickets stopped all deliveries by employees of grocery stores, laundries and dairies. He further testified that he desired to do the janitor work himself and that he did not wish to belong to the union. On cross-examination, witness testified that he had been a janitor for 14 years; that he was the janitor for a building at Lavergne and Fullerton avenues, Chicago; that in the Spring of 1940 Quesse asked him for more money; that he replied that he did not have the money and that he did not want to join the union; that the following day (in April 1940) the pickets were again patrolling the sidewalk and alley adjoining plaintiff’s property; and that the pickets carried signs reading 1 ‘ This building unfair to organized labor. Chicago Flat Janitors’ Union, Local No. 1,”; that they walked up and down, and once in a while said “Building on strike.” In answer to the question, “You did not have any trouble at all, nobody was hurt there at any time, nobody was arrested?” he answered, “No.” He also answered that the police were not called at any time and that he did not have any difficulty since November 1, 1939. Witness also testified that when the pickets were placed in the vicinity of his building for two days in April 1940, they were there from ten in the morning until noon. No further testimony was offered. The chancellor then stated, “I think this is not a good case. I will dismiss this ease for want of equity at this point. There will have to be another case made out. ... It is dismissed for want of equity.” However, on the insistence of the attorneys for plaintiffs, the court permitted plaintiffs to dismiss the case without prejudice, and such an order was entered on June 30, 1941. On July 2, 1941 the attorney for plaintiffs served a notice on the attorney for the defendants that on the following day he would appear before the chancellor and ask that the order dismissing the cause be vacated, that the cause be reset for trial, that he be granted leave to file an amendment to the complaint, and that an injunction issue. On July 3,1941 the chancellor vacated the order dismissing the cause, reinstated the cause and allowed plaintiffs to file instanter a second amendment to their complaint by striking from the complaint paragraph 5 and substituting paragraph 5-a. Paragraph 5 is the paragraph which charges that the defendants harassed plaintiffs and caused pickets to be placed near the premises until plaintiffs paid sums of money to defendants, including the $50 which was paid. The amendment permitted to be filed on July 3, 1941, known as paragraph 5-a, reads:

“5-a. That immediately upon taking possession of said premises, plaintiffs had trouble and difficulty with defendants in that defendants refused to permit plaintiff, John Naprawa, to act as janitor for said premises and that for the purpose of being permitted to act as janitor for said premises the said John Naprawa told said William C. Quesse that he would join the Union and paid to said Quesse the sum of $50.00, but that the plaintiff, John Naprawa, immediately chánged his mind about joining the Union and refused to make any additional payments to join said Union and does not wish to join said Union but desires to take care of and manage and act as janitor for said premises.”

On July 3, 1941 the attorney for plaintiff stated to the court that on the preceding day the picketing was resumed, and that plaintiffs were then in the same position as when the pickets were first around the premises. Without hearing any testimony or being presented with any affidavits, the chancellor stated that the attorney for the plaintiffs was going away on a vacation on the following day; that he would vacate the order of dismissal; that when the matter came up he would dismiss it again just as he had on June 30th, and he would ask the attorney for the defendants to agree to the withdrawal of the pickets. Defendants’ attorney replied that the pickets had been withdrawn for a period of 18 months while the litigants were awaiting the opinion in the Swing case [which was decided in February 1941] and that he could not again agree to the withdrawal of the pickets. He stated that his clients had a right to peacefully picket the premises, and called attention to the fact that there was no petition or affidavit to support the motion to vacate the order of dismissal, or for the granting of an injunction. The court stated: “I am going to sign the order for the injunction presented on the testimony heard by me on June 30, 1941, and the statement of counsel this morning that the picketing has been resumed. The owner has a right to act as janitor for his own building.” The court then entered an order that a writ of injunction issue forthwith, restraining the defendants, their agents and attorneys from calling a strike against and picketing the premises; from preventing the delivery of goods, wares and merchandise to the premises; from calling any strike on the premises or interfering with John Naprawa, and from acting as janitor of the premises until the further order of the court. The defendants appeal from the order awarding the injunction.

The recitation of the leading facts in the record shows that the case was heard on its merits and that the court dismissed the complaint for want of equity. Three days later the court vacated the order of dismissal and granted an injunction. At that time there was no further hearing. Plaintiffs did file an amendment to the complaint by adding paragraph 5-a and striking paragraph 5. Paragraph 5 proceeded on the theory that Quesse extorted or “shook down” Nap-rawa for the sum of $50. The cross-examination of Naprawa brought out that the $50 was received as a down payment on the initiation fee of Naprawa as a member of the union, and that Naprawa agreed to pay a balance of $150. It is apparent that the substitution of paragraph 5-a for paragraph 5 was occasioned by the recognition by plaintiffs that in view of the testimony of Naprawa, paragraph 5 did not state the truth. It is interesting to note that Naprawa swore to the truth of the allegations of the original complaint as well as to the truth of the amendment containing paragraph 5-a. When the order appealed from was entered, the situation was the same as When the cause was dismissed, except that the picketing had been resumed. The parties to this appeal treat it as an appeal from an interlocutory order. Defendants argue that the injunction violates the constitutional rights of defendants as preserved by Section 4, Article 2 of the Constitution of Illinois, and by the First and Fourteenth Amendments to the Constitution of the United States. Section 4, Article .2 of our State Constitution provides that “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; . . . . ” The 1st Amendment to the Constitution of the United States prohibits Congress from making any law abridging the freedom of speech or of the press. The 1st Section of the 14th Amendment of the Constitution of the United States provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Plaintiffs maintain that ‘ ‘ the owner of an apartment building, who is not a member of the Janitors’ Union, may do the janitor work therein, and the union may not picket the building by pickets, who tell all service and delivery men that the owner is unfair to union labor, that the building is on strike and that they cannot deliver or service the building (and who stop such deliveries and service and all decorating therein), with the result that no delivery or service men will call and deliver and no painters will decorate the apartments.” In support of their position, plaintiffs cite the language of the preamble, of our Federal Constitution that the people in order “to secure the blessings of liberty to themselves and their posterity,” ordained and established such constitution. They point out that the 5th Amendment of the Federal Constitution states that no person shall be deprived of life, liberty or property without due process of law, and that the 14th Amendment provides that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. Plaintiffs assert that the law must protect John Naprawa in his right to work as a janitor in the building of which he is part owner to the same extent as it must protect janitors in their rights when they unite in a labor union. Both parties discuss the evidence introduced during the hearing of June 30, 1941. There was no showing of violence, coercion, threat or intimidation on the part of the defendants, or against any person doing business with plaintiffs. While the complaint charges that persons making deliveries to the building were prevented from doing so, and that painters and decorators were prevented from working in the building, it is apparent that this was not caused by any coercion, but rather by the fact that two pickets were patrolling the vicinity of the building. It is well established that peaceful picketing in labor disputes is lawful. In addition to carrying signs bearing the legend, “This building unfair to organized labor, Chicago Flat Janitors’ Union Local No. 1,” the pickets stated substantially the same thing to delivery men and to painters and decorators who intended to enter the premises. In the case of American Federation of Labor v. Swing, 312 U. S. 321, the union endeavored to unionize Swing’s beauty parlor. Picketing of the shop followed. Swing and his employees filed a complaint, praying for an injunction. They charged the use of false placards in picketing and forcible behavior towards Swing’s customers. The complaint was dismissed. In sustaining the action of the trial court the Supreme Court said at page 325:

“We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no ‘peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him. Such a ban of free communication is inconsistent with the guarantee of freedom of speech. That a state has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even these essential powers are unfettered by the requirements of the Bill of Bights. The scope of the Fourteenth Amendment is not confined by the notion of a particular state regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the state. A state cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become commonplace. American Steel Foundries v. Tri-City Council, 257 U. S. 184, 209. The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern.for the economic interests against which they are seeking to enlist public opinion than could the utterance protected in Thornhill’s case. ‘Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.’ Senn v. Tile Layers Union, 301 U. S. 468, 478.” In the case of Senn v. Tile Layers Protective Union, Local No. 5, 301 U. S. 468, 57 Sup. Ct. 857, it appeared that plaintiff conducted a small business, in the main, from his residence, with a showroom elsewhere. He employed one or two journeymen tile layers and one or two helpers. Working with his own hands with tools of the trade, he performed personally on the jobs much work of a character commonly done by a tile layer or a helper. Neither Senn nor any of Ms employees was a member of either the Tile Layers Union or the Tile Layers Helpers’ Union. The unions endeavored to induce Senn to become a union contractor. Senn expressed a willingness to execute the agreement requested by the union. One article of the agreement provided that Senn could not work with tools or act as a helper, but that all installation of materials should be done by journeymen members of the Tile Layers Union. He refused to sign the agreement without this clause being eliminated. He contended that the right to work in his business with his own hands is a right guaranteed by the Fourteenth Amendment and that the State may not authorize unions to employ publicity and picketing to induce him to refrain from exercising it. The court said at page 862:
“Members of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. . . . The sole purpose of the picketing was to acquaint the public with the facts and, by gaining its support, to induce Senn to unionize his shop. There was no effort to induce Senn to do an unlawful thing. There was no violence, no force was applied, no molestation or interference, no coercion. There was only the persuasion incident to publicity. . . . The unions acted, and had the right to act as they did, to. protect the interests of their members against the harmful effect upon them of Senn’s action.” The facts in the recent case of Lawrence Avenue Building Corp. v. Van Heck, 377 Ill. 37, are somewhat analogous to the facts in the. case at bar. They both involve picketing by members of Local No. 1 of the Chicago Flat Janitors’ Union. However, in the Van Heck case a corporation owned the building. In the instant case the building is owned by John Naprawa and Bridget Naprawa. John Naprawa, one of the owners, is doing the janitor work. As stated in the Swing case, it is not unlawful to picket even where there is no dispute between the employer and employees of the plant that is being picketed. In the case of O’Neil v. Building Service Employees International Union No. 6 (Wash. (2d)), 115 P. (2d) 662, it appeared that plaintiff owned two apartment houses in the city of Seattle. She sought to enjoin the Building Service Employees International Union Local No. 6 and its agents from picketing her apartment houses, or using any coercive measures whatsoever with the intent to compel her to recognize and ■join the union. A demurrer interposed to the complaint was sustained and she appealed to the Supreme Court of Washington. The complaint alleged that she was a widow with several adult children who were capable of assisting her in the management of the two apartment houses owned by her, and that she was informed by a delegate of the union that unless she joined the union, a boycott would be declared against her and her business. The complaint also alleged that no person or persons were being hired in connection with the operation of the two apartment houses, and that there was no controversy concerning the employment of workmen or wages. The pickets patrolled in front of the apartment houses bearing signs announcing that the apartment houses were unfair to organized labor. The court discussed the Swing case and said at page 664:
“That case presented the question as does the case at bar, whether the right of freedom of speech is violated by an injunction restraining a labor union from peacefully picketing a place of business on the ground that such place of business is unfair to organized labor. . . . If a labor union has the legal right to picket, as unfair to organized labor, the place of business of an employer who refuses to compel his employees to join such union or to discharge them for refusal to become members of the picketing union, it logically follows that a labor union has the legal right to go a step farther and peacefully picket the place of business of a person who has no employees, one doing business as an individual proprietor, to compel, against his will, such lone person or individual proprietor to join the picketing union.” Plaintiff inquires: “Is the owner of an automobile unfair to labor if he drives his own car (there is a chauffeurs union); is he unfair to organized labor if he fixes his car (there is a machinists union); is he unfair to organized labor if he cleans and washes his car (there is a union for this class of workers) ?” We do not believe that the situations contemplated in this inquiry are comparable to the facts in the case before us.

The apartment building is owned by John Naprawa and his wife. This building contains 49 apartments and 2 shops. It is clear that he is not acting as a janitor solely for his own household. He is acting as a janitor for 49 households and for the proprietors of the 2 shops. At the time plaintiffs purchased the property they knew that a member of the defendant union was employed as a janitor. This man was discharged by plaintiffs and John Naprawa took over the janitor’s work. A dispute arose between plaintiffs and the union. Naprawa joined the union and paid $50 on account of the initiation fee of $200. Thereupon the pickets patrolling the vicinity of the premises were withdrawn. Naprawa did not pay the balance due on his initiation fee and the pickets were restored. There was no violence or threat of violence. John Naprawa1 clearly had the right to perform the janitor work. The union also had a right to inform their members and the public by means of pickets that in so doing they considered the owners of the building unfair to organized labor. Under the circumstances disclosed by the record and under the recent opinions of our Federal and State Supreme Courts, the members of the union did not violate any law in patrolling the vicinity of plaintiffs’ premises and informing persons who might pass, including deliverymen, painters and decorators, that plaintiffs were, unfair to the members of the union. Under the circumstances, this wás the lawful exercise of the right of freedom of speech as defined by the recent cases.

In their petition for rehearing plaintiffs suggest that “this appeal is only against the restraint on peaceful picketing.” They point out that the in junc-tional order is divided into four parts. The record shows that defendants appeal from the entire order. Plaintiffs state that since this court found that Na-prawa has the right to perform the janitor work, it was error to reverse the order in toto, and states further that as this court found that the union may peacefully picket, only the first part of the order which restrains defendants from calling a strike against and picketing or causing the premises to be picketed, should be reversed. Plaintiffs assert that the second portion of the order restraining defendants from preventing or causing to be prevented the delivery of goods, wares and merchandise to the premises, the third portion restraining defendants from calling a strike on the premises or preventing or interfering with any painters, decorators or workmen from working on the premises, and the fourth portion restraining defendants from molesting, harassing or interfering with plaintiff from acting as janitor of the premises, should be affirmed. We agree with defendants that the second and third divisions of the order deal with the results of the first. The purpose of the picketing is to endeavor to influence other union members and the public in their dealings with plaintiffs. We have held that the record in this case does not show that the defendants exercised violence or any unlawful intimidation. The fourth part of the order was not warranted because the defendants did- not attempt to molest or interfere with John Naprawa in performing the janitor work in the premises, except by way of picketing, which they had a right to do.

For the reasons stated, the order of the circuit court of Cook county entered on July 3, 1941, is reversed.

Order reversed.

Hebel and Kilby, JJ., concur.