#### S. F. Sayrs, Defendant in Error, v. John Yangas and E. F. Thompson, Plaintiffs in Error.

Gen. No. 20,053.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Hbfiby C. Beiteeb, Judge, presiding. Heard in the Branch Appellaté Court at the March term, 1914.

Affirmed.

Opinion filed December 31, 1914.

Rehearing denied January 13, 1915.

Statement of the Case.

Action by S. F. Sayrs against John Yangas and E. F. Thompson on a stav-of-execution bond given to plaintiff by Thompson with Yangas as surety, to recover the amount of a judgment, cost and interest, and the value of the use of the premises for the period during which Thompson remained in possession after the judgment was rendered, said judgment having been recovered by plaintiff against defendant in a suit for the possession of certain premises, and affirmed by the Appellate Court. See *Sayrs v. Thompson,*172 Ill. App. 207. The defendants filed an affidavit of merits. The court entered an order stating, in substance, that the defendants by their affidavit had admitted the amount of the original judgment, costs and interest to be due and that the affidavit showed a defense to only a portion of plaintiff’s demand. A judgment was thereupon entered against the defendants for the amount of the original judgment, interest and costs, hut reserved “for future determination and adjudication the matter of the balance of the plaintiff’s demand. ’ ’ The defendants sued out a writ of error from that judgment, but were again unsuccessful and the judgment was affirmed. See *Sayrs v. Yangas,*187 Ill. App. 23. The defense interposed to the reserved claim for the value, use and occupation of the premises was that the premises had no rental value whatever because of the alleged untenantable condition of the *32same. A trial was had by a jury and plaintiff recovered a verdict and judgment for two hundred dollars. To reverse the judgment, defendants prosecute error.

Abstract of the Decision.

1. Appeal and ebbob, § *1012*
      ***
      *—when remarks of court not presented for review.*Alleged prejudicial remarks of the trial court are not presented for review when not shown in the abstract of the record.

2. Landlord and tenant, § *206*—when instruction on duty of owner to make repairs proper.*An instruction to the effect that an owner of property is under no obligation to keep his premises in repair when the person who is in possession is occupying the same, without any agreement and without permission of the owner, *held*to correctly state the law applicable to the case.

3. Appeal and ebbob, § *1884*—admissibility of evidence in suit on stay bond.*In an action on a stay-of-execution bond to recover the amount of the judgment, costs and interest and the value of the use of the premises after the judgment was rendered, refusal to permit the defendant to prove an alleged agreement on the part of the plaintiff to make repairs, *held*proper where the offer related to a period of time prior to the original judgment

4. Appeal and ebbob, § *1884*—admissibility of evidence in suit on stay bond.*In a suit on a stay-of-execution bond to recover for the use and occupation of the premises since the rendition of the judgment, it is not error to refuse to permit defendant to prove that he paid for repairs made on the premises where there was no proof tending to show that the plaintiff agreed to reimburse him for the same.

Thompson, Clark & Stevenson, for plaintiffs in error.

M. B. Waltz and Henry T. Chace, Jr., for defendant in error.

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Fitch

delivered the opinion of the court.