Theodorson v. Ahlgren, 37 Ill. App. 140 (1890)

June 30, 1890 · Illinois Appellate Court

37 Ill. App. 140

Bengt S. Theodorson v. Olof H. Ahlgren.

Landlord and Tenant—Recovery of Rent—Practice—Set-off—Evidence.

1. The admission of evidence in behalf of a defendant of a set-off, without any plea or notice thereof, is reversible error.

2. A judgment for defendant below can not be reversed upon appeal where the record shows that the pleadings and evidence had no relation to each other.

[Opinion filed June 30, 1890.]

Appeal from the Circuit Court of Cook County; the Hon. George Deiggs, Judge, presiding.

Messrs. Blanke & Chytraus, for appellant.

Mr. L. C. Cooper, for appellee.

Gary, P. J.

As the bill of exceptions shows, the appellant sued the appellee for rent. We had determined to reverse the judgment, because, over the exception of the appellant, evidence of a set-off was admitted without any plea or notice of it; but, on referring to the declaration, we find that while all the common counts about goods, money, work, interest and account stated are in it, there is nothing about rent or use and occupation.

The judgment against the appellant can not therefore be reversed, when on the record it appears that the pleadings and evidence had no relation to each other.

Judgment affirmed.