delivered the opinion of the Court:
On the 23d of December, 1884, appellee leased to appellants-premises in the city of Chicago, described as “first loft of building number 197-201, Fifth avenue, ” for three years, from January 1, 1885, at a yearly rental of $2000, payable monthly,, on the last day of each month. After the description of the-premises, and the provisions in the lease as to the term, rental,, etc., there is a memorandum, as follows: “Tenant to have privilege of storing a reasonable number of eases in the basement.” There is a covenant in the lease, on the part of appellants, that they had received said premises in good order and in good condition. They continued in possession until about. January 1, 1886. This suit was brought on the 6th day of January, 1887, by the landlord, for unpaid rent, and he recovered a judgment in the Superior Court for $1728.75, and costs- of suit. That judgment being affirmed in the Appellate-Court for the First District, appellants again appeal.
The defense .set up and relied upon in the court below was,, that defendants had been evicted by appellee of a material part of the premises leased, prior to their abandonment of the-. same, and that having paid all rent due for the time of actual occupancy, they were not further liable. This defense is based upon the clause or memorandum, “Tenant to have the privilege of storing a reasonable number of cases in the basement. They did not claim, on the trial, that they were actually evicted from the basement. On the contrary, they showed that they never had possession of it, but that, in compliance with that part of the lease, they were furnished space on the fourth and fifth floors of the same building; that after using the same for about a year, by renting the same to other tenants, the landlord deprived them of the space so occupied, and they then called upon appellee for storage room in the basement, which also being occupied, was denied them. But appellee thereupon offered^to still furnish them space on said fourth floor, about twenty feet long by twelve feet wide, which they refused to accept, because it was insufficient.
Conceding that said clause is sufficiently definite to amount to a leasing of* a portion of the basement, the question as to whether, by their conduct, appellants did not waive their right to occupy the same, and consent to take storage room in other parts of the building, was a controverted question of fact, which is conclusively settled against them by the verdict of the jury and judgment of affirmance in the Appellate Court. The same is also true of the question whether or not the space offered them on the fourth floor was storage room for a reasonable number of cases. Therefore, unless there was some error of law in the rulings of the Superior Court assigned here, the judgment of the Appellate Court must be affirmed.
The only complaint made in this regard is as to the giving of instructions on behalf of appellee. The complaint is not that these instructions do not correctly announce the law, but that there was no evidence before the jury upon which to base them. We do not think it can be said that there is no evidence whatever in the record tending to support them.
No criticism is to be made upon the authorities cited by-counsel for appellants as sustaining the case on their theory of the facts. They are inapplicable, however, because that theory is destroyed by the finding below.
We are also of opinion that the clause referred to did not amount to a leasing of premises. No part of the basement is described. No amount of space is mentioned. What might be regarded as a reasonable number of cases is left wholly to conjecture. There is nothing to indicate the kind of cases referred to, and therefore it is impossible to determine whether much or little space would be required for their storage. At most it can only be construed as granting a privilege to the lessee to occupy, for a special purpose, space not included in the lease.
We find no error in the record, and the judgment of the Appellaté Court will be affirmed.
Judgment affirmed.