Higgins v. Halligan

Citations

• 46 Ill. 173

Syllabus

<p>1. Pleadings—of the declaration—unnecessary allegations rejected as surplusage. Where a count in the declaration described the plaintiff as an executrix, but was not on a liability to her as such, the action being brought to enforce a contract made with her in her individual capacity, such words of description can be rejected as surplusage.</p> <p>2. Tender—party accepting of—when not concluded by. Where a party accepts of a tender, if it be not accepted in full of all demands, such acceptance will not conclude him from proceeding for more.</p> <p>3. Time—proper mode of computing—instruments to take effect from a specified day named therein. The rule adopted by this court for the computation of time, where an instrument is to take effect from a particular day, is to exclude the day named therein, and include the day assigned for its termination. And this rule applies to a notice given to terminate a tenancy.</p> <p>4. Landlord and Tenant—tenant from year to year—consequences of parly holding over. Where a tenant under a lease from year to year, is notified by his landlord before the expiration of his term, that if he occupies the premises another year, he must pay a certain increased rent, and the tenant holds over, such act will be construed as an implied agreement that he shall hold the premises upon the new terms imposed.</p> <p>6. Former Decisions. The following cases are cited as sustaining this doctrine: Prickett v. Ritter, 16 Ill. 97; McKinney v. Peck, 28 ib. 178.</p> <p>6. Landlord and Tenant—relation, not changed by tenant holding over. And in such case where the tenant continues in possession after notice imposing new terms, such act of holding over after the expiration of his. term, paying rent, in no wise changes the relation between the parties of landlord and tenant, and an action for use and occupation upon the new terms, will lie.</p> <p>7. Former Decisions. The ease of Dudding v. Hill, 15 Ill. 61 and McNair v. Schwartz, 16 ib. 24, are not in conf