Shirk v. Birk Bros. Brewing Co. , 191 Ill. App. 15 ( 1914 )

Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision. 1. Landlord and tenant, § 6^*-—when evidence shows refusal of tenant to accept written lease. Evidence held to show that a tenant did not accept a written lease, although he signed one of the duplicates, where he afterwards scratched out his signature and sent it to the landlord stating that he refused to he hound thereby for the reason it did not include a certain oral agreement, and this although the evidence showed that he did not return the other duplicate, which was not signed by him. 2. Landlord and tenant, § 330*—form of judgment when proof fails to establish lease sued on. In an action based solely on a written lease, where the defendant denied his acceptance thereof and set up a different contract under which he conceded he owed plaintiff a certain sum, held that on failure of plaintiff to prove the lease sued on, and his failure to amend his statement of claim, the court could enter only a judgment of dismissal or for the defendant for costs, and that it was error to enter a judgment in favor of plaintiff for the amount conceded by defendant to be due upon the other contract. 3. Set-off and recoupment, § 18*—claims of recoupment. A claim of recoupment must arise out of the contract upon which the suit is brought, ór be connected in some manner directly therewith. 4. Set-off and recoupment, § 37^*—necessity of proving contract out of which claim for recoupment arises. Where a plaintiff fails to prove the contract sued on, the defendant cannot prove another and different contract and then recoup damages for its breach.