#### Star Brewery of Chicago v. Johanna Croake.

1. Practice—Question of Excessive Damages.—Neither a general exception to the finding, nor a motion for a new trial on the ground that the verdict is against the evidence, raises the question of the excessive amount of the finding.

Memorándum.—In the County Court on appeal from a justice of the peace; the Hon. Charles H. Donnelly, County Judge of McHenry County, presiding. Submitted at the October term, 1894.

Affirmed.

Opinion filed January 10, 1895.

E. S. Cummings, attorney for appellant.

Oscar E. Leinen, attorney for appellee.

Mr. Justice Gary

delivered the opinion oe the Court.

The appellant was guarantor of the performance of all covenants by lessees of the appellee, among which covenants were one to pay rent and another to pay all attorney fees incurred by the appellee in enforcing the covenants of the lease. The rent was $55 per month.

The lease contained a provision that if the lessees abandoned the premises the appellee might relet them, and if, at. a loss, the lessees would pay the deficiency.

*288She sued for $50 deficiency on two months, and $110 attorney fees incurred in enforcing the covenants in former suits.

On the trial she testified that under written leases she had received $60 for the two months, and the appellant objected and excepted to such testimony without the production of the leases; but the covenant was “ if a sufficient sum shall not be thus realized * * * to satisfy and pay all deficiency.”

The question therefore was, not what others had agreed to pajr, but how much she had realized, which the leases, if produced, had no tendency to show.

After the evidence on the part of the appelleee was all in, the appellant moved the court that the finding be for $60, which motion the court overruled, and later entered a finding for $160, to which the appellant excepted.

The appellant is not in a position, after such a motion, to complain generally of a finding for the appellee.

The case is, in substance, like that of giving instructions upon a principle concurred in by both parties, when neither can complain. Keeler v. Kerr, 54 Ill. App. 468.

Neither a'general exception to the finding, nor a motion for a new trial assigning as a reason that the finding is against the evidence, raises any question of excessive amount. Giffert v. McGuern, 51 Ill. App. 387.

We shall not, therefore, take the pains to' show that the amount is in fact right. The judgment is affirmed.