Mayer v. C. H. Mitchell & Co.

Mr. Justice Gary delivered the opinion of the Court.

The appellee sued for the price of a freight elevator put into a building under a contract with the appellant. The contract price was $560 and the elevator was to be complete several days before it ivas so in fact.

The appellant allowed to his tenant a deduction of $125 ■from the rent because of this delay.

The declaration was the common counts in assumpsit, which was appropriate. Taylor v. Renn, 79 Ill. 181 ; Lucas v. Googwinn, 4 Scott 502; S. C., 3 Bing. N. C. 737; 32 E. C. L. 340; Fowler v. Deakman, 84 Ill. 130 ; Gottschalk v. Smith, 54 Ill. App. 341 .

Damages for delay could be recouped under the general issue. Cook v. Breble, 80 Ill. 381 .

But such damages must be proved. The mere fact that the appellant had allowed to his tenant a certain sum was no such proof. The failure of the appellant to comply with his covenant to furnish his tenant with the use of an elevator did not suspend the rent of the demised premises.

The tenant was doubtless entitled to a reduction of his rent of so much as that failure diminished the rental value, but no more. Priestly v. Forth Ind. and Chi. R. R., 26 Ill. 205 .

There being no proof applicable ■ to the damages which the appellant was entitled to recoup, the verdict was properly for the contract price. As the appellant had no ground upon which to ask a new trial, the refusal by the court to entertain his motion for one, did him no harm, and the judgment is affirmed.