McConaughy v. Huston

Mr. Presiding Justice Thompson delivered the opinion of the court. By the lease the appellees owed the plaintiff $35 for rent, due September 1, which the evidence shows has not been paid. The lease called for certain enumerated repairs, which it is admitted were made by the appellant. The lease provides “no other repairs except as hereafter mutually agreed.” This clause is a nudum pactum and ineffective for any purpose. A change in the lease could only be made by some instrument under seal. To bind the landlord to make any other repairs than those enumerated would require a new contract in writing based on a new consideration. Goldsbrough v. Gable, 140 Ill. 269. The appellant did not agree to make any repairs to the roof in the written lease and was under - no obligation to repair it. Sunasack v. Morey, 196 Ill. 569; Watson v. Moulton, 100 Ill. App. 560. Ño reason is shown why the appellees are entitled to any relief against their express contract to pay the $35, due September 1. The tender was insufficient and informal and admitted the amount tendered, less the costs at the time of making the tender, to be due. If plaintiff had not been entitled to recover more than the tender, the jury should have found for the defendants on the issue of tender. Appellees should have tendered a specific amount to the appellant and the costs, and the tender should have been forwarded by the justice to the Circuit Court. Under the evidence the jury should have found in favor of the plaintiff for $35, the amount of the rent due, or for- dollars in addition to said sum tendered, 'after the costs were deducted, naming an amount sufficient to make the total $35. The court could then render a proper judgment that the plaintiff accept the tender and have and recover of the defendants judgment for-dollars, over and above the said sum tendered, etc. The judgment is reversed and the cause remanded. Reversed' and remanded.