#### Isabella Curran, Appellant, v. L. K. Cushing, Appellee.

Gen. No. 21,338.

(Not to be reported in full.)

Abstract of the Decision.

1. Landlord and tenant, § 140 * —when tenant not estopped to deny premises are uninhabitable. A tenant who has not gone into possession of premises rented for residence purposes is not estopped to deny that they were in a habitable condition at the time the term commenced because the lease contained a covenant on his part that he received possession of the demised premises in good order and condition, such covenant being untrue.

2. Landlord and tenant, § 176 * —when covenant for quiet possession and enjoyment implied. The law implies a covenant for quiet possession and enjoyment of leased premises.

3. Landlord and tenant, § 275 * —when tenant not in possession not liable for rent. The failure of the landlord to put leased premises in a habitable condition at the commencement of the term excuses a tenant who has not gone into possession from all the covenants of the lease including the covenant to pay rent.

Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.

Heard in this court at the March term, 1915.

Affirmed.

Opinion filed January 3, 1916.

Statement of the Case.

Action by Isabella Curran, plaintiff, against L. K. Cushing, defendant, upon a lease for an apartment. Under a power of attorney contained in the lease, judgment was entered for plaintiff for one month’s rent and attorney’s fees. On motion made by defendant and a pertinent showing of facts, he was let in to plead. From a judgment of nil capiat, plaintiff appeals.

Edward J. Kelly, for appellant.

Charles E. Selleck, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.