#### David Wiener v. Joseph F. Nachbour and William A. Nicolaus.

Landlord and Tenant—Recovery of Rent—Practice—Evidence.

In an action for rent, trial being by the court without a jury, where the judgment was clearly what was required by the proper evidence in the case, the error of the trial court in admitting other evidence is no ground for reversal.

[Opinion filed December 8, 1890.]

Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, J udge, presiding.

Messrs. Haley & O’Donnell, for ajipellant.

Mr. C. W. Brown, for appellees.

Hpton, J.

Eliminating from this contention what we regard as immaterial, this suit was brought by appellant against appellee to recover the rent of a room in the second story of Mr. Wiener’s building, No. 223 Jefferson street, in the city of Joliet. The lease was not in writing, the rent was by the month. Appellant claims the term of the lease was for one year, commencing about January 1, 1888. The defense was, that the leasing was by the month and for no definite term, and that the room and the keys thereto were surrendered or offered to the appellant in September, 1888. It was further insisted in defense, that §5, being the rent of this room for October, 1888, was included in a judgment in a former suit between the parties hereto, or at least was then tried and determined, and is a bar herein to that extent. In the Circuit Court a jury was waived, and the issue submitted to the court. No questions of law were raised in the trial court, by propositions submitted to the court by either party. This case and the rights of the parties must be deter*528mined upon the facts, as made to appear by competent evidence in the case. Aside from the competency of the evidence introduced or offered in the trial court, we are to regard the findings of the court on the facts, as exclusive as if found by a jury. We have examined this record with care, as to all matters in contention between the parties to which our attention has been directed. We think that the bill of exceptions allowed in evidence of the former suit between the parties to this record, was clearly erroneous.

We are also all clearly of opinion, that both defenses interposed by appellees as before stated, were fully made out and established, so that no other verdict (if such facts had been submitted to a jury) would have been proper, and this entirely without the bill of exceptions in the former suit, to show what the evidence was in that suit touching the rent for this room for October, 1888 (which admission was undoubted error), but as without this the finding must have been for appellee, such error is wholly immaterial.

The notice of surrender of possession given in September, 1888, although not formal, was well understood by appellant and that was sufficient. The judgment of the Circuit Court is, therefore, affirmed.

Judgment affirmed.