HOLT v. NIXON, 141 F. 952

BAKER, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The action of forcible entry and detainer is statutory, and the plaintiff can succeed only on the terms prescribed in the statute. Under the

section applicable here the plaintiff could not maintain his action, except by complying with the statutory condition, which required him to prove that the defendant was holding over “without right.” This the plaintiff accomplished in his opening, wherein it was not disclosed that the United States had elected to renew.

In meeting, the prima facie case the defendant was entitled to bring out the fact of election to renew, not as an affirmative defense, legal or equitable, but as the denial of the existence of the condition without which the plaintiff could not bring himself within the statute on which he based his action. Facts that demonstrated that the plaintiff was withholding the lease without right would establish that the defendant was not holding over without right. Eichorn v. Peterson, 16 Ill. App. 601. The Supreme Court of Illinois, so far as we are advised, has not passed upon this question. Hunter v.

Silvers, 15 Ill. 174, was-based on a former statute that did not contain the words “without right.” So the court below ruled correctly in admitting evidence of the election to renew. The plaintiff claims that he was entitled to a directed verdict on account of the insufficiency of the facts brought out by the defense to constitute an election to renew. The point is made that the plaintiff’s covenant did not require him to execute a lease which contained the words “payable on the last day of each quarter.” But such was the legal effect of the words of the original lease.

The terms and conditions respecting rent were therefore as distinctly expressed as if the legal effect of the words employed had also been written out in full. Consequently there was no variance between the lease tendered for execution and those which the plaintiff had been executing in renewal. And since the rent conditions were fully expressed in the original lease, the foregoing conclusion also disposes of the assignments based on the court’s refusal to permit the plaintiff to introduce parol evidence in contradiction of such conditions.

Furthermore, the Treasury Department and the collector of customs derived their authority from the law; and the statutes quoted in the statement of the case, which were called to the plaintiff’s attention before he signed the original lease, limited the authority of the governmental agents to bind the United States. The letter from the Treasury Department to the collector was properly excluded. The rights of the United States became fixed by the notice to renew, which was never withdrawn.

Those rights were not abandoned by looking for other premises with a view to surrendering, if the Treasury Department should thereafter think it desirable to do so, the premises in question to the plaintiff. The judgment is affirmed.