#### Rudolph Van Hessen, Plaintiff in Error, v. Joseph Defrier, Defendant in Error.

Gen. No. 17,184.

1. Landlord and tenant — when verdict for tenant in action for rent not supported. In an action for rent, a verdict for defendant is not supported by tbe evidence -where plaintiff makes a prima Sacie case entitling him to judgment for at least two months’ rent, the evidence under the defense that the premises were used as a house of ill fame with plaintiff’s knowledge and consent does not show a use not wholly consistent with the proper use of such premises as a hotel, for which the lease expressly provided, and there is no proof tending to show knowledge by the landlord of improper use or of circumstances tending to show such use.

2. Landlord and tenant — evidence of improper use of premises 6y tenant to avoid payment of rent. A tenant should not be allowed to avoid payment of rent on the ground that the premises were used by him for some unlawful purpose unless the evidence as to such use at least shows a state of facts inconsistent with the lawful use thereof.

Error to the Municipal Court of Chicago; the Hon. Michael P. Girten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

Reversed and remanded.

Opinion filed March 26, 1913.

0 ’Donnell, Dillon & Toolen and L. W. Carpenter, for plaintiff in error.

No appearance for defendant in error.

Mr. Justice G-raves

delivered the opinion of the court.

Plaintiff in error began in the Municipal Court a suit to recover rent due him for premises occupied by defendant in error, under a lease providing for the use of such premises for “saloon, residence and hotel purposes.” The amended affidavit of merits filed on behalf of the defendant on September 21, 1910, and signed and sworn to by his attorney, states his defense *469to be “that during tbe months of July and August, 1911, and before continnonsly since defendant leased said premises in question 9170 Harbor avenue were used as a bouse of ill fame and prostitution of tbe knowledge of plaintiff and witb bis knowledge and consent.” Tbe ease was tried by a jury and resulted in a verdict and judgment for tbe defendant. Tbe defendant in error bas filed no argument. From tbe record in this case it appears that on tbe trial plaintiff in error, by bis evidence in chief, made a 'prima facie case entitling him to a judgment for at least two, if not three, months’ rent at $100 per month. It further appears that tbe defendant did not prove bis defense, as set out in tbe affidavit of merits above quoted, even assuming that it means that tbe premises bad been used by tbe defendant as a bouse of ill fame and prostitution, witb tbe knowledge and consent-of tbe landlord.

If tbe affidavit of merits was true, it is safe to assume tbe defendant knew tbe fact. Whether bis failure to come forward and support bis defense by bis testimony was because be was disinclined to lie about it, or ashamed to tell tbe truth, either of which conditions would be to bis credit, tbe result is tbe same. Tbe verdict is not supported by tbe evidence.

Tbe defendant did take tbe stand in bis own behalf and testified that since May 1, 1910, tbe premises bad not been used as a bouse of ill fame; that before that date be bad seen women and men in bis saloon, bad seen them go upstairs and enter rooms together and when they came out they bad given tbe landlady a dollar; that be bad never mentioned such things to tbe landlord and that tbe landlord was not present when tbe men and women bad gone to or come from tbe rooms. There is no proof of whether these men and women occupied tbe rooms they entered an hour or a day, whether tbe rooms were bed rooms, living rooms or dining rooms, or whether tbe persons were husband and wife, or that they were persons of loose *470morals or of bad repute, or of any other fact or circumstance not wholly consistent with the proper use of the premises as a hotel, which was one of the express purposes for which the building was leased. While it is said to be true that these circumstances are also consistent with the use of the premises as a house of ill fame, there is no proof whatever even tending to show that the landlord knew anything about such circumstances, or of the improper use of such rooms or premises. Before a tenant should be allowed to avoid payment of rent, because of the use of the premises by himself for some unlawful purpose, the evidenóe as to the use the same have been put to should at least show a state of facts inconsistent with its lawful use.

The judgment is, therefore, reversed and the cause is remanded to the Municipal Court.

Reversed and remanded.