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Elizondo v. Medina

OPINION FILED OCTOBER 1, 1981.

ANITA ELIZONDO, PLAINTIFF-APPELLEE,

v.

ELUTERIO MEDINA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS WYNN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from an order denying his post-trial motion to set aside a judgment for plaintiff in a forcible entry and detainer action involving commercial premises. The court awarded plaintiff possession, $800 rent and costs.

On appeal, defendant contends (1) there was a fatal variance between the pleadings and the proof since plaintiff originally sought $900 in damages for rent; (2) the statutory 5-day notice (Ill. Rev. Stat. 1979, ch. 80, par. 8) was invalid because it demanded more money ($900) than the landlord was entitled to receive; (3) the trial court erred in denying his motion for a new trial when he offered to prove, by a receipt, that he had paid the May rent; and (4) the trial court erred in denying defendant relief from the forfeiture of the lease.

We affirm.

Background Facts

Anita Elizondo, plaintiff, testified she gave defendant, Eluterio Medina, a document she identified in court as a 5-day notice; it was received in evidence. The notice stated in part:

"You are hereby notified that there is now due the undersigned landlord the sum of $900 being rent for the premises situated in the Chicago, County of Cook, and State of Illinois, described as follows, to wit: Store located at 3633 West 26th Street, together with all buildings, sheds, closets, out-buildings, garages and barns used in connection with said premises.

And you are further notified that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the expiration of 5 days after service of this notice your lease of said premises will be terminated July 10th, 1980.

No-one is hereby authorized to receive said rent so due, for the undersigned.

Dated this 5th day of July, 1980."

The document, which is signed by plaintiff and her attorney, and notarized, contains an affidavit of service that plaintiff served the notice on defendant on July 5, 1980, by delivering a copy to him. While defendant owed rent for June, defendant did not submit $900 to her by July 10 as required by the notice; but defendant did submit a check for $400 which she refused to accept. On cross-examination, she testified no one else was authorized to receive the rent including her husband.

Defendant testified he has paid the rent for May, June and July. Defendant attempted to offer into evidence a check in the amount of $400, showing payment of May rent, but its admission was refused. Defendant also claimed he paid the June rent, $150 in cash and a check for $250. Another check for $250 was offered in evidence, but refused. On July 1, defendant claimed he gave plaintiff a money order for $400, but she refused it. Defendant also claimed plaintiff consistently refused to give receipts for the rent. Defendant testified that he was a tenant under a written lease, had occupied the premises since May 1, 1976, and there was a 3-year option to renew under the same terms and conditions.

The trial court found from the evidence presented that there was inadequate evidence of payment of the money due for June and that there was a tender of a portion of the monies due; but the trial court concluded this did not satisfy the 5-day notice; therefore, the tender was insufficient. Because there was a question of the adequacy of the proof since the $100 still due for May was tied in with a previous court case, the court found judgment for rent should be in the sum of $800, rather than $900 specified in the notice.

Defendant filed a written motion for a new trial stating that contrary to plaintiff's testimony that she had not received a certain money order, defendant had obtained the money order and would present it in court. At the hearing on this motion, plaintiff stated that the check related to the May rent. At this hearing, defendant's counsel admitted defendant owed rent money for June and July, but argued that he still had 9 months remaining on a written lease, and the lease should not be forfeited. On August 28, 1980, in denying the motion, the court stayed the judgment during appeal and ordered ...


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