#### Henry J. Thomssen, Defendant in Error, v. Herman T. Meinersmann, Plaintiff in Error.

Gen. No. 22,609.

(Not to be reported in full.)

Abstract of the Decision.

1. Landlord and tenant, § 68 * — when evidence shows failure to comply with, covenant to furnish heat. Where the evidence shows that the temperature of a flat used as a dwelling, for which, under the lease, the landlord covenants to furnish heat, was as low as 46° Fahrenheit and that as a result the lessee’s wife, and child became sick and the flat was rendered uninhabitable, is sufficient to show a failure to comply with the- covenant.

- 2. Landlord-, and -tenant, ■§ 262* — what constitutes constructive eviction. The failure of a landlord to furnish heat in accordance witn the provisions of the lease constitutes a constructive eviction which justifies''the tenant in moving from the premises and releases him from the payment of the rent thereafter accruing.

Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the March term, 1917.

Reversed with judgment of nil capiat and for costs.

Opinion filed July 2, 1917.

Statement of the Case.

Action by Henry J. Thomssen, plaintiff, against Herman T. Meinersmann, defendant, to recover rent and attorney’s fees. To reverse a judgment for $100 for plaintiff, defendant prosecutes this writ of error:

Paul A. P. Warnholtz, for plaintiff in error; Charles A. Pitch, of counsel.

No appearance for defendant in error.

*

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

Mr. Presiding Justice Holdom

delivered the opinion of the court.