• 1 At common law, in the absence of an express provision to the contrary in the lease, the tenant was obliged to yield back the premises at the end of his term in the same condition as when received, ordinary wear and tear excepted. As was said in Leavitt v. Kostel (1961), 32 Ill. App.2d 313, 317, 177 N.E.2d 882: "The undertaking of the tenants to yield back the premises at the termination of the lease is a customary clause which, insofar as it excepts reasonable wear and tear, is expressive of the common law."
Lastly, the majority reads out the term "covenants" from the 2007 Settlement, rendering that portion of the merger clause superfluous. A court must read "[e]very contract ... as a whole," and "favor a construction" that does not render superfluous a portion of the contract. Leavitt v. Kostel , 32 Ill.App.2d 313, 177 N.E.2d 882, 885 (1961). The 2007 Settlement states that all "covenants concerning the subject matter hereof, are merged herein and shall be of no further force or effect."
However, the record and complaint fail to disclose that plaintiff-lessor ever exercised his remedy even after knowledge of the breach of the keeping of flammable fluids. We conclude that pursuant to the terms of paragraph No. 13, plaintiff has waived the remedy the parties agreed upon for the lessee's breach of paragraph No. 6. See Windsor at Seven Oaks v. Kelly (1983), 113 Ill. App.3d 978, 448 N.E.2d 251; see also Leavitt v. Kostel (1961), 32 Ill. App.2d 313, 177 N.E.2d 882. • 3 Since the circuit court appears to have relied solely upon Cerny-Pickas Co. v. C.R. Jahn Co. (1955), 7 Ill.2d 393, 131 N.E.2d 100, in granting defendant's motion, we must determine whether it was properly applied to the facts in the instant case.
An instrument must be read and considered as a whole. ( Leavitt v. Kostel (1961), 32 Ill. App.2d 313, 177 N.E.2d 882; In re Estate of Klinker (1979), 80 Ill. App.3d 28, 399 N.E.2d 299.) Therefore, we do not believe that section 2.07(b) of the Building Declaration mandates a broad reading of relevant sections of the Master Declaration to include rental activities.