delivered the opinion of the Court:
Appellant brought covenant against appellee for rent. Upon the trial in the circuit court, appellant read in evidence a deed executed by himself to appellee, leasing certain real estate in Peoria, from March 18,1883, until March 18,1884, for $840, payable in installments of $70 on the 18th day of each month, occupation of the premises after the execution of the deed by appellee until the 18th of October, 1888, the payment of the stipulated rent for the term described in the deed, the failure of appellee to surrender possession of the premises at the expiration of the term, and his continued occupancy thereof, payment of the same rent for the first month after the expiration of the term, as provided by the deed to be paid by the month during the term, and the payment of other sums for rent, from time to time, throughout the period that appellee occupied the premises, amounting, however, in the aggregate, to a less sum than the total amount of rent due at the rate provided to be paid by the deed.
Appellee was permitted to introduce evidence, over the objection of appellant, tending to'prove that, after the expiration of the term described in the deed, and-after he had paid appellant one month’s rent for the occupation of the premises at the rate provided to be paid in the deed,—namely, on the 28th of May, 1884,—he commenced negotiating with appellant to reduce the rent for the premises; that the negotiation was protracted -until the 9th of July following," when it was agreed, between appellant and appellee that the rent for the premises should be reduced to $50, in lieu of $70, per month, as it had been theretofore. And the court refused to instruct the jury, at the instance of the appellant, that even if they believed such agreement had been proved, it was “invalid, and ■could not be enforced;” but on the contrary, the court instructed the jury, that if they believed, from the evidence, that such agreement had been proved, it was valid, and the plaintiff was thereafter entitled to recover only $50 per month for the rent of the premises.
In our opinion the court erred in these several rulings. There was no evidence given on behalf of appellee tending to ■prove that he had surrendered the premises to appellant before the making of the agreement of July 9, 1884, or that he had offered to do so and refused to execute the terms of the •deed, or that there was any reason why he could then have surrendered the premises and refused to execute the terms of the deed. Appellee having remained in possession after the ■expiration of the term described in the deed without any new ■contract with appellant in respect thereto, it was optional with .appellant to treat him as a trespasser, or to waive the wrong •of holding over and treat him as a tenant; and by accepting ■the payment of the month’s rent thereafter from appellee, ap-pellant made his election, and appellee then became a tenant ■of the premises, nnder appellant, from year to year, upon the .same terms and subject to the same rent, etc., as is provided to be paid in the original deed. Prickett v. Bitter, 16 Ill. 96; Hurst v. Morton, 18 id. 75; McKinney v. Peck, 28 id. 174; Clinton Wire Cloth Co. v. Gardner et al. 99 id. 151; Webster v. Nichols, 104 id. 160.
The only respect wherein the agreement of the 9th of .July, 1884, whereof evidence was permitted to be given to the jury, ■purported to change this tenancy from year to year, is in the amount of the monthly payments of rent to be made. Appellee, by that agreement, is required to do nothing which he was not already obligated to do as tenant from year to year, and appellant’s duties are in nowise lessened or changed thereby. It simply purports to obligate appellee'to pay and appellant to receive $50, where they were already obligated, the one to pay and the other to receive $70. There is, thereby, neither in fact nor in presumption of law, injury or loss to appellee, or gain or benefit to appellant. It follows that it is an agreement, as clearly as one can be, without any consideration to support it,—a mere nudum pactum; and so it is binding upop neither of the parties, and is unsusceptible of being enforced in this suit. Titsworth v. Hyde, 54 Ill. 386; Seybolt v. N. Y., L. E. and W. R. R. Co. 95 N. Y. 562; Davenport v. First Cong. Society, 33 Wis. 387; Johnson’s Admr. v. Seller, Admr. 35 Ala. 265; Gordon v. Gordon, 56 N. H. 170. See, also, 3 Am. and Eng. Ency. of Law, 390, 391, and notes.
It is impossible to say that the agreement was made as an adjustment of a dispute in regard to a doubtful right, for appellee’s own testimony shows that there was no fact in dispute between him and appellant. His testimony is only that he _ claimed that the rent should be reduced, and that appellant resisted the claim at first, but finally yielded to the extent shown by the agreement. It can not be held that appellant 'is in any way estopped by the agreement, since it is not shown 'that appellee has, in consequence of it, done "that which he ■would otherwise not have done, whereby he will be injured if 'the agreement be not carried out. Nor can it be held that the agreement has the effect of an executed gift as to the difference between the $50 and the $70 per month, because there 'was executed no receipt or release for the amount, and there .was no proof of any action of the parties equivalent thereto.
The judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court for a .new trial.
Judgment reversed.