This action was commenced in the Municipal Court of Cincinnati. Eugene C. Pociey, plaintiff below, filed a statement of claim for $75, for rent of certain premises on Myrtle avenue, with interest from February 15, 1922.
The defendant below, Adelia, Braun, filed a gen*371eral denial, and by an amended cross-petition stated a claim against the plaintiff in tbe snm of $5,390.
Defendant moved that tbe ease be certified to tbe Court of Common Pleas on tbe ground that tbe Municipal Court did not bave jurisdiction of tbe amount. Tbe plaintiff moved to strike this motion from tbe files. Both these motions were overruled by tbe Municipal Court.
The plaintiff below demurred to tbe cross-petition. Tbe court sustained that demurrer, and entered judgment for tbe plaintiff in tbe amount claimed.
Tbe Court of Common Pleas affirmed tbe judgment of the Municipal Court, and this proceeding is prosecuted to reverse that judgment.
One of tbe assignments of error is that tbe Municipal Court erred in overruling defendant’s motion to certify tbe case to tbe Court of Common Pleas for want of jurisdiction.
Section 1558-10, General Code, provides that if tbe amount plaintiff claims exceeds tbe amount for which tbe Municipal Court may enter judgment, plaintiff may remit tbe amount in excess of tbe jurisdictional amount, and bave judgment in its favor. If tbe defendant in such action in the Municipal Court asserts a claim against tbe plaintiff, he need not remit tbe excess and may withhold setting it out. In either ease, failure to set it up or a recovery of an amount equal to or less than tbe amount for which tbe Municipal Court may enter judgment, would not be a bar to a subsequent action to recover tbe amount withheld. In view of this provision of tbe statute, tbe Municipal Court correctly overruled defendant’s motion to certify.
On the question of plaintiff’s motion to strike *372defendant’s motion from the files it is only necessary to say that such practice should not he encouraged, and we know no authority in law for such procedure.
The defendant’s cross-petition undertakes to state a claim for damages for breach of the contract in litigation. The contract is made a part of'the petition. It recites:
“And in that case, if mutually agreeable, tenant will be entitled to have this agreement extended for one year from March, 1922, until March 15, 1923, and the same as to the year beginning March 15, 1923, and ending March 15, 1924.”
The contract for the premises was for one year. It expired March 15, 1922. The defendant gave plaintiff notice of her desire to renew the contract, which the plaintiff refused.
The contract recites that it could be renewed, “if mutually agreeable.” In the case of Domhoff & Joyce Co. v. Hamilton Furnace Co., decided by this court July 12, 1922, it was held that a contract containing a provision for the mutual agreement by the partiesi to extend or change that contract was binding, that only the original contract was in force until the parties mutually agreed on the part reserved for such purpose. In this case the parties did not reach an agreement.
In view of this provision of the contract, the demurrer to the cross-petition was properly sustained.
The municipal court was in error in rendering judgment on the statement of claim and the answer containing a general denial. The pleadings made an issue that should have been determined on a*373trial. The Court of Common Pleas was in error in affirming that judgment.
For the errors stated the judgment will be reversed and the cause remanded to the Court of Common Pleas with instructions to remand it to the Municipal Court for a new trial.
Judgment reversed and cause remanded.
Buchwalter and Hamilton, JJ., concur.