{
  "id": 5383713,
  "name": "E. W. Shirk, Plaintiff in Error, v. Birk Brothers Brewing Company, Defendant in Error",
  "name_abbreviation": "Shirk v. Birk Bros. Brewing Co.",
  "decision_date": "1914-12-31",
  "docket_number": "Gen. No. 19,458",
  "first_page": "15",
  "last_page": "17",
  "citations": [
    {
      "type": "official",
      "cite": "191 Ill. App. 15"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 283,
    "char_count": 4132,
    "ocr_confidence": 0.511,
    "sha256": "2e18a259bb5a013ccee493a699ae8ae1cfcf91c8a9c06fe66fc4e423be8ad189",
    "simhash": "1:8927dfc59ddeb23e",
    "word_count": 705
  },
  "last_updated": "2023-07-14T16:18:11.463405+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "E. W. Shirk, Plaintiff in Error, v. Birk Brothers Brewing Company, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Fitch\ndelivered the opinion of the court.\nAbstract of the Decision.\n1. Landlord and tenant, \u00a7 6 -\u2014when 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.\n2. Landlord and tenant, \u00a7 330*\u2014form 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.\n3. Set-off and recoupment, \u00a7 18*\u2014claims of recoupment. A claim of recoupment must arise out of the contract upon which the suit is brought, \u00f3r be connected in some manner directly therewith.\n4. Set-off and recoupment, \u00a7 37 \u2014necessity 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.",
        "type": "majority",
        "author": "Mr. Presiding Justice Fitch"
      }
    ],
    "attorneys": [
      "Ullmann, Hoag & Davidson, for plaintiff in error.",
      "Lackner, Butz, von Ammon & Johnston, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "E. W. Shirk, Plaintiff in Error, v. Birk Brothers Brewing Company, Defendant in Error.\nGen. No. 19,458.\n(Not to be reported in full.)\nError to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.\nReversed and remanded.\nOpinion filed December 31, 1914.\nRehearing denied January 13, 1915.\nStatement of the Case.\nAction of fourth class in the Municipal Court by E. W. Shirk against Birk Brothers Brewing Company, a corporation, to recover $357.50, alleged to he due to plaintiff by the terms of a written lease for May rent for the year 1912, of certain premises in Chicago. Upon a trial by the court without a jury, judgment was entered in favor of plaintiff for $27.50. To reverse the judgment, plaintiff prosecutes a writ of error.\nThe plaintiff\u2019s statement of claim avers that on March 28,1912, the plaintiff \u201cexecuted and delivered\u201d to defendant, a written lease of the premises in question, for a term beginning May 1, 1912, and ending April 30, 1913, at a rental of $357.50 per month, payable in advance; that defendant \u201caccepted the said lease\u201d and took possession of the premises \u201cthereunder,\u201d but did not pay the rent for May, 1912, when it became due under the terms of the lease.\nThe defendant\u2019s amended affidavit of merits states that defendant has a good defense, upon the merits, to all except $27.50 of the plaintiff\u2019s demand. It denies, however, that defendant either \u201caccepted the lease mentioned in the statement of claim,\u201d or went into possession under it, and then avers, in substance, that prior to April 30, 1912, the defendant was in possession of the premises under a lease providing for a monthly rental of $330; that a fire occurred\" there in January, 1912, that soon after, a verbal agreement was made, to the'effect that \u201cin consideration of the defendant\u2019s renting the said premises at an increased monthly rental, to-wit, $357.50, the defendant would be allowed the sum of $330 by the plaintiff to compensate the defendant for the damages suffered through the aforesaid fire;\u201d that \u201cdefendant has tendered $27.50, being the difference between the monthly rental due on the first day of May, 1912, and the said $330;\u201d and that said tender was refused by the plaintiff..\nUllmann, Hoag & Davidson, for plaintiff in error.\nLackner, Butz, von Ammon & Johnston, for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0015-01",
  "first_page_order": 59,
  "last_page_order": 61
}