#### Banks Agricultural & Transfer Co., use of, etc., v. Joseph H. Masters.

1. Recoupment—By Tenant When Sued for Bent.—A tenant can not leave a lot of chattels in premises that he abandons and then sell them to his landlord, through the process of recoupment, when unpaid rent is demanded of him.

Transcript, from a justice of the peace. Writ of error to the Circuit *574Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.

Heal'd in this court at the March term, 1897.

Reversed and remanded.

Opinion filed March 29, 1897.

Steele & Egberts, attorneys for plaintiff in error.

H. B. Spurlock, attorney for defendant in error.

Mr. Presiding Justice Shepard

delivered the opinion of the Court.

The defendant was the lessee from the plaintiff of a room furnished with one-horse steam power for light manufacturing purposes, and occupied and paid the stipulated rent therefor for three months. At the end of the third month (July, 1893), he explained to plaintiff’s agent that the novelty with which he had been experimenting was a failure, and, to quote from his testimony, “ told Mr. Banks (plaintiff’s agent), it was the latter part of July I told him I wished to discontinue the use of his power; but if I could use the room I would pay for one month longer; that was the month of August.

Q. For one month? A. Tes, that is what I told him, one month longer. * * * In substance I said to him, after August, if I could not sell out, all the goods that were there could be pushed up in the corner, and I would pay him a little for storage; I told him I wanted them stored; I had no conversation with him. concerning the goods after that. I never saw him on the premises, that I remember of; never, probably, after the latter part of July; I was not around the premises after that.”

Defendant had paid rent for the three months preceding August, and according to his own version, agreed to pay rent, diminished by the use of the power which, it does not seem to be disputed, was reckoned at five dollars a month for the month of August, if he could be permitted to retain the room for that month.

It is not contended that the defendant did not retain the room for August under the arrangement made, nor is it claimed that he ever afterward paid.either rent or storage. He, therefore, certainly owed fifteen dollars for that month.

*575The plaintiff’s claim, as disclosed by the evidence, was for rent for August, September and October, at the rate of fifteen dollars a month, and for November and December, at the rate of seven dollars and a half a month, making a total of sixty dollars, and plaintiff’s agent testified that such was the agreement.

The defendant undertook to recoup against the claim of the plaintiff the value of some chattels which he left in the room, and he was allowed to testify, over the objection of plaintiff, that their value aggregated one hundred dollars, and the jury found the issues in his favor, and judgment went accordingly.

Even if we consider no evidence except that furnished by the defendant, the verdict was wrong, and ought not to have been allowed to stand.

His chattels were left by him exactly as they were when he quit work, in a room to which he had the key, that he admits he rented for one month, and he never afterward was around the premises.

Some time in the following year, 1895, when plaintiff presented a bill for the rent, defendant for the first time, afterward, inquired for the goods, and was then told by plaintiff’s agent that they had been left in the building when plaintiff moved out.

A tenant may not leave in that way a lot of chattels which the defendant himself named as “ stuff,” in premises that he abandons, and then sell them to his landlord through the process of recoupment, when unpaid rent is demanded of him.

The plaintiff offered to prove that before it moved out of the premises, it caused a letter to be written by its agent to the defendant, notifying him that it was about to remove, and to give directions concerning his material or it would be left behind at his own risk, but the court refused to admit such evidence. We think such a ruling was error, in view of the evidence by defendant that preceded the offer, but we reverse the judgment upon the broader ground that no case for recoupment or set-off was made by the defendant. Reversed and remanded.