#### Kate M. West, Appellee, v. J. A. McNaughton, Appellant.

Gen. No. 23,597.

(Not to he reported in full.)

Abstract of the Decision.

1. Judgment — how question of res adjudicate cannot he determined. On a motion to open a judgment by confession for rent, where plaintiff in a counter-affidavit claimed that the right to rent had been adjudicated in a previous judgment, the trial judge cannot properly determine the question of res adjudicate by consulting the files and record in the previous case.

2. Landlord and tenant, § 310 * — what is not defense in action for rent. The fact that a tenant, abandoning leased premises prior to the expiration of the lease, tendered a desirable tenant for a portion of the unexpired term is not a defense in an action to recover rent, on the theory that the tenant was deprived of an opportunity to minimize his loss.

Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed May 14, 1918.

Statement of the Case.

Judgment by confession for rent and attorney’s fees was recovered by Kate M. West, plaintiff, against J. A. McNaughton, defendant. Upon denial of the latter’s motion to vacate the judgment, he appeals.

See also West v. McNaughton, ante, p. 259, a related case.

Gregory, Burges & McNab, for appellant.

T. F. Monahan, for appellee.

*

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

Mr. Presiding Justice Barnes

delivered the opinion of the court.