Messrs. Rosenthall, Hamill, & Wormser and Harry Markeim, for appellant:

The complainant is entitled to a lien upon the demised premises for the value of the building which he erected, not as the result of a contractual right, but as a mode of equitable redress to relieve an unconscionable wrong. The appellate court misconceived the issue in considering it as a matter of contractual construction instead of as a question of equitable remedies.

Cromwell v. Allen, 151 Ill. App. 404; Szulerecki v. Oppenheimer, 283 Ill. 525, 119 N. E. 643; Reno v. Mendenhall, 58 Ill. App. 87; Leavitt v. Fletcher, 10 Allen, 119; Mitchell v. Hancock County (Mitchell v. Weston) 91 Miss. 414, 15 L.R.A. (N.S.) 833, 124 Am. St. Rep. 706, 45 So. 571; Bevan v. Waters, Moody & M. 235, 3 Car. & P. 520; H. Meyer Boot & Shoe Mfg. Co. v. Ward, 68 Ill. App. 272; Robinson v. Appleton, 124 Ill. 276, 15 N. E. 761; Pom. Eq. Jur. § 1260; Bispham, Eq. 9th ed. § 352, p. 571; Gable v. Ellis, 120 Ill. 136, 11 N. E. 188; Ecke v. Fetzer, 65 Wis. 55, 26 N. W. 266; Hopkins v. Gilman, 22 Wis. 476; Hopkins v. Gilman, 47 Wis. 581, 3 N. W. 382; Mullen v. Pugh, 16 Ind. App. 337, 45 N. E. 347; Franklin Land, Mill & Water Co. v. Card, 84 Me. 528, 24 Atl. 960; Scruggs v. Memphis & C. R. Co. (Matthews v. Memphis & C. R. Co.) 108 U. S. 368, 27 L. ed. 756, 2 Sup. Ct. Rep. 780; National Waterworks Co. v. Kansas City, 27 L.R.A. 827, 10 C. C. A. 653, 27 U. S. App. 165, 62 Fed. 853; Los Angeles City Water Co. v. Los Angeles, 103 Fed. 711; Swift v. Sheehy, 88 Fed. 924; Berry v. Van Winkle, 2 N. J. Eq. 269; Tinsley v. Durfey, 99 Ill. App. 239; Halvorsen v. Halvorsen, 120 Wis. 52, 97 N. W. 494; Robinson v. Appleton, 124 Ill. 276, 15 N. E. 761; Wright v. Buchanan, 287 Ill. 468, 123 N. E. 53.

Complainant's right to continue possession until his claim is satisfied is incidental to the equitable lien to which he is entitled, especially in view of the insolvency of the defendant, Mary Szulerecki, and therefore the forcible detainer action should be enjoined.

Parker v. Garrison, 61 Ill. 250.

Apart from the equitable lien to which the complainant is clearly entitled, the jurisdiction of equity is sustained upon the case made by the

bill of complaint, for the specific performance of the covenant of the defendant, Mary Szulerecki, to restore the demised premises in the event of their destruction by fire.

Cumberledge v. Brooks, 235 Ill. 249, 85 N. E. 197; Fred Gorder & Son v. Pankonin, 83 Neb. 204, 131 Am. St. Rep. 629, 119 N. W. 449; Ferguson v. Omaha & S. W. R. Co. 142 C. C. A. 145, 227 Fed. 513; Wright v. Buchanan, supra; Robinson v. Appleton, 124 III. 276, 15 N. E. 761; Andrews v. Sullivan, 7 Ill. 327, 43 Am. Dec. 53; Burger v. Potter, 32 Ill. 66; Corbus v. Teed, 69 Ill. 205.

Messrs. Austin J. Rooney and Daniel Riley McMaster, for appellee:

The destruction of demised premises by fire, and the restoration or partial restoration of same by the tenant without the consent of the landlord, do not create an equitable lien in favor of tenant for the cost of same or give him the right to retain possession after the expiration of the term.

Hite v. Parks, 2 Tenn. Ch. 373; New York Dyeing & Printing Establishment v. DeWesternberg, 46 Hun, 281; Confiscation Cases, 1 Woods, 221, Fed. Cas. No. 3,097; Re Coatsworth, 160 N. Y. 114, 54 N. E. 665; Speers v. Flack, 34 Mo. 101, 84 Am. Dec. 74; Bresler v. Darmstaetter, 57 Mich. 311, 23 N. W. 825; Swift v. Sheehy, 88 Fed. 924; Duigan v. Hogan, 1 Bosw. 645; Gardner v. Samuels, 116 Cal. 84, 58 Am. St. Rep. 135, 47 Pac. 935; Bream v. Dickerson, 2 Humph. 126; Richards v. Lewis S. Arms Shingle & Lumber Co. 74 Mich. 57, 41 N. W. 860.

On a breach by the landlord of his covenant to repair, the tenant has the election of several remedies, but is not entitled to an injunction restraining an action for possession by the landlord in the absence of fraud, accident, or mistake.

Cromwell v. Allen, 151 Ill. App. 404; 2 Underhill, Land. & T. § 525; 3 Sutherland, Damages, § 872; Bard v. Jones, 96 Ill. App. 370; Phillips v. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476; Joyce, Inj. § 529; 1 High, Inj. § 75.

The damages to which a tenant is entitled in case of a breach of a covenant to repair or restore upon the part of the landlord are the expenses necessarily incurred by the tenant in making such repairs.

Fort v. Orndorff, 7 Heisk. 167; Mc

Farlane v. Pierson, 21 Ill. App. 566; Drago v. Mead, 30 App. Div. 258, 51 N. Y. Supp. 360; Chadwick v. Woodward, 12 Daly, 400; 1 McAdam, Land. & T. 460; 3 Sutherland, Damages, § 873.

Dunn, J., delivered the opinion of the court:

Julius Oppenheimer filed a bill of complaint in the circuit court of Cook county, alleging that on February 19, 1908, Mary Szulerecki demised and leased to him certain premises in the city of Chicago from May 1, 1908, to April 30, 1918, for the sum of $12,000, payable in monthly instalments of $100 each, in advance; that the lease contained a clause by which it was agreed that, in the event that the demised building, or any part thereof, should be rendered untenantable by fire or other casualty, the lessor should restore the same within ninety days after such loss, damage, or destruction, and that the lessee should not be obligated to pay any rent for any part of the demised premises rendered untenantable while the same were untenantable, and, further, that in the event of the failure of the lessor to restore the premises, the lessee might at his option, but without prejudice to his other remedies, terminate the lease; that the complainant at the time the lease was entered into had been in the occupancy of said premises under a former lease for five years, and had used them for the conduct of his business in connection with the adjoining premises belonging to him, and has continuously since then so occupied and used said premises, and has in all things complied with the covenants and obligations imposed upon him by the lease; that on December 24, 1914, the building upon the demised premises was damaged by fire, and thereby rendered wholly untenantable and unfit and valueless for mercantile purposes; that Mary Szulerecki insisted that by virtue of the fire the lease was terminated, and demanded that the complainant vacate the premises, and refused to restore the 28 A.L.R.-91.

building; that in consequence of her default the complainant was compelled to, and did, erect upon the premise such a building as Mary Szulerecki was obligated by her covenant to erect, at an expense of more than $5,000; that Mary Szulerecki brought suit in forcible entry and detainer for the possession of the premises, and rccovered a judgment, which the appellate court reversed (Szulerecki v. Oppenheimer, 204 Ill. App. 359), and the judgment of the appellate court was afterward affirmed by the supreme court of Illinois (283 Ill. 525, 119 N. E. 643); that for many years past the complainant has conducted a large dry goods department store upon said premises and his own premises adjoining them on either side as a single and entire business, and all the buildings on his own premises, as well as those on the leased premises, were destroyed by the fire of December 24, 1914; that after the complainant had waited a reasonable time to permit Mary Szulerecki to comply with her covenant to restore the premises, and after serving upon her formal notice to do so, and after her final refusal so to do, the complainant restored the premises as aforesaid; that in consequence of the necessity that the reconstruction upon the complainant's premises be consistent and harmonious and usable with that upon the leased premises, and that the plans for all of such reconstruction be settled and determined before the commencement of work thereon, the erection of all of the buildings and the resumption of the complainant's business were delayed for a long time by reason of the refusal of Mary Szulerecki to keep and perform the covenant, and by reason of the premises the good will of the complainant's business was seriously impaired, and complainant lost large profits, amounting to $48,000, which he otherwise would have earned during the period that the resumption of his business was delayed; that the damages suffered by the complainant by reason of the

breach of her covenant by Mary Szulerecki in failing to restore the premises aggregate the sum of $60,000; that at the time of the fire, and continuously since, the fair market value of the leased premises was somewhere between $25,000 and $30,000; that through the erection by the complainant of the building upon the leased premises the covenant of Mary Szulerecki to restore was specifically performed by the complainant, and the leased premises were permanently improved and enhanced in value, and that the complainant is entitled to a lien upon the premises for his costs, expenses, and outlays in that behalf and interest; that he has been continuously in possession of the premises, and is entitled to retain such possession until his claims and all damages sustained by him have been paid; that after the expiration of the lease on May 1, 1918, Mary Szulerecki began a suit in forcible detainer against the complainant for the possession of the leased premises, to which the complainant has no defense at law, his defense and claim being cognizable solely in equity, and that if she is permitted to prosecute her suit the complainant will be deprived of his rights in the premises and the security to which he is entitled for the enforcement of his claims. Anastazia Szulerecki was also made a defendant as the holder of a pretended mortgage on the premises which appeared of record, the bill alleging that there was no consideration for the mortgage, no indebtedness secured by it, and that it was not a lien on the premises. The bill prays that the restoration of the building by the complainant may be decreed to be a performance by him on behalf of the defendant, and at her risk and expense, of her covenant to restore the demised premises; that the damages which the complainant has suffered by reason of her breach of the covenant by Mary Szulerecki be ascertained and determined; that an account of the costs, expenses, and outlays of the complainant in

effecting the restoration of the premises may be taken, and that all sums of money found due the complainant may be declared a lien on the leased premises; and that an injunction may be allowed restraining Mary Szulerecki from prosecuting the forcible detainer suit against the complainant. The complainant made a motion for a preliminary injunc tion, which the court denied, and, the defendant having demurred to the bill, the demurrer was sustained, and the bill was dismissed for want of equity. The appellate court affirmed the decree, and granted a certificate of importance, and the complainant has appealed to this court.

The lease was for a definite term, which had expired when the forcible detainer suit was brought, and the appellee was therefore entitled to the possession of the premises unless the breach of the covenant to restore the building in case it should be rendered untenantable by fire gave the lessee a right to retain the possession until the damages occasioned by such breach are paid. The lease provided that in the event of the lessor's failure to restore the building the lessee might at his op tion, but without prejudice to his other remedies, terminate the lease. The lessee elected not to terminate the lease, and it was held in Szulerecki v. Oppenheimer, 283 Ill. 525, 119 N. E. 643, that he had the right to the possession of the premises for the remainder of the term. The lease did not provide what the other remedies of the lessee were, aside from the option to terminate the lease, but counsel on both sides agree in their briefs that the remedies available to a tenant on the breach of his landlord's covenant to repair are correctly stated in Cromwell v. Allen, 151 Ill. App. 404, as follows: "In case a landlord fails to make repairs in violation of his covenant the tenant may (1) abandon the premises if they become untenantable by reason of want of repair; (2) he may make the repairs himself and deduct the cost from

the rent; (3) he may occupy the premises without repair and recoup his damages in an action for rent; (4) he may sue for damages for breach of the covenant to repair, and the damage recoverable in this last instance is usually the difference between the value of the premises in repair and out of repair."

It has been held that where the landlord has agreed to make all necessary repairs and has refused to do so upon proper request, the tenant may make the necessary repairs and charge them to the landlord. Hendry v. Squier, 126 Ind. 19, 9 L.R.A. 798, 25 N. É. 830; Thompson E. v. Clemens, 96 Md. 196, 60 L.R.A. 580, 53 Atl. 919; Miller v. McCardell, 19 R. I. 304, 30 L.R.A. 682, 33 Atl. 445; Myers v. Burns, 35 N. Y. 269. The rule is stated in Taylor on Landlord & Tenant, 9th ed. § 330, as follows: "A general covenant to repair, when made by the lessor, requires him not only to keep the premises in good repair, but to put them in that condition, although the tenant may have entered.

If the landlord neglects to make suitable repairs after being thereunto required by the tenant, the latter may, after waiting a reasonable time, make such repairs himself, and recover the expense from his landlord, or he may, at his option, leave the premises unrepaired and recover the damages he may have sustained from the landlord's default therein."

The covenant to repair includes the duty to rebuild tenant-covenant in case of destruc

Landlord and

to repair-duty to rebuild.

tion of the premises. Crocker v. Hill, 61 N. H. 345, 60 Am. Rep. 322; Leavitt v. Fletcher, 10 Allen, 119.

The building constructed on the premises became a part of the real estate the title of which was vested in the appellee, who was at once liable to an action by the appellant for its value. The lease contains no express language making the cost of

Fixturesreconstruction of building by tenant.

restoration by the tenant, or any other damages arising from the breach of the appellee's covenant, a lien on the premises, but the appellant contends that the court should decree a lien in his favor for the value of the building and permit him to retain possession until it is paid. It was said in Williams v. Vanderbilt, 145 Ill. 238, 21 L.R.A. 489, 36 Am. St. Rep. 486, 34 N. E. 476, quoting from 3 Pomeroy's Equity Jurisprudence, § 1234, that "the theory of equitable liens has its ultimate foundation contracts, express or implied, which either deal with or in some manner relate to, specific property."

in

In the next section of Professor Pomeroy's work it is said that "every express executory agreement in writing whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands, not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice."

In such cases equity will enforce the expressed intention that the particular property shall be security for the performance of the obligation by decreeing a lien upon the property. This rule is not, however, limited to express contracts, for, "in addition to the general doctrine that equitable liens are created by executory contracts which in express terms stipulate that property shall be held, assigned, or transferred as security security for the promisor's debt or other obligation, there are some further instances where equity raises similar liens. without agreement therefor between the parties, based either upon general considerations of justice.