#### Richard Farnsworth, Plaintiff in Error, v. William Gromm, Defendant in Error.

Gen. No. 6,373.

(Not to he reported in full.)

Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 19, 1917.

Rehearing denied October 3, 1917.

Statement of the Case.

Action by Richard Farnsworth, plaintiff, against William Gromm, defendant, to recover for the use and occupation of certain premises. From a judgment for defendant for costs, upon trial by the court and motion by defendant to exclude. all the evidence, plaintiff brings error.

Butters & Clark, for plaintiff in error.

*340Abstract of the Decision.

Assumbstt, Action oe, § 62* —when does not lie for use and occupation against contract purchaser of land. Under a contract for the purchase by defendant of certain premises upon partial payments, providing that upon his default in any required payment plaintiff should have the option of terminating the contract and retaining as liquidated damages any 'payments made, and that defendant should retain possession of the premises until such default and exercise of plaintiff’s option, where defendant made default and plaintiff exercised his option by forfeiting and determining the contract and demanding possession of the premises, and defendant surrendered same, held that an action in assumpsit would not lie for use and occupation of the premises or for damages under the contract.

Stead, Woodward & Hibbs, for defendant in error.

*

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

Mr. Presiding Justice Niehaus

delivered the opinion of the court.