SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
Mr. PRESIDING JUSTICE RECHENMACHERdelivered the opinion of the court:
The cross-appellant, Loy, has petitioned for a rehearing on the ground that this court’s opinion erroneously treated his amended complaint as a counterclaim and thereby overlooked those aspects of his claim which were founded on negligence, willful and wanton conduct and fraud.
The petitioner is technically correct as to the form of the pleadings: it is true that the petitioner, after an adverse ruling in the first trial on his counterclaim, filed a direct complaint in two counts — breach of covenant to repair and negligence — and later filed an amended complaint adding two more counts — willful and wanton conduct and fraud. Nevertheless, the trial court, in its judgment order of February 26,1975, described Zion Industries as the “plaintiff,” and Loy, the petitioner here, as the “defendant,” and the order appealed from is that “Plaintiff — Counter-Defendant, Zion Industries, pay to Alfred J. Loy d/b/a Arrow Moving and Storage the sum of *474.09.” In the motions to reconsider, which both parties filed separately, each styles the motion “Zion Industries, plaintiff, v. Alfred Loy, defendant." Likewise, the notice of appeal in each case (both parties appealed) designated Zion as the plaintiff and Loy as the defendant.
The question we must consider is not what the correct designation of the parties is, but whether there was a prejudicial failure to consider the counts of negligence, willful and wanton conduct and fraud, as set forth in Loy’s complaint. This court, while neglecting to treat negligence as a separate count in the opinion, did not ignore the question of negligence. On page 10 of the opinion we said:
“Loy’s claim for damages is obviously based on the lease and not on negligence. Apart from the lease there is no duty on the landlord to maintain the premises or repair the roof (Ing v. Levy (1975), 26 Ill. App. 3d 889), so the extent of such duty and the consequences of failure to perform it must be determined by reference to the lease.”
As further authority for the proposition that the landlord has no common law duty to repair the premises and is therefore not answerable in negligence for failure to do so, except in special cases, not applicable here, see Elizondo v. Perez (1976), 42 Ill. App. 3d 313; McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884; Forshey v. Johnston (1971), 132 Ill. App. 2d 1106; Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382. See also 24 Ill. L. & Prac. Landlord and Tenant § 281 (1956), and 49 Am. Jur 2d Landlord and Tenant § 774 (1970).
It is obvious that a count alleging negligent repair of a roof is based on a covenant to repair the roof in the first place. The allegation of negligent repair of the roof has relevance only insofar as there was a covenant to repair the roof. The breach of the duty does not give rise to an action in tort but only in contract for breach of the covenant. In other words, the repairing of the roof in a negligent manner might give rise to an action for breach of a covenant but since the obligation to repair the roof only arises out of the covenant the unsatisfactory repair cannot also at the same time be a tort giving rise to an action on the case. The petitioner’s complaint as to an alleged failure to consider the negligence count has no merit since negligence is not a proper basis of recovery here.
The counts alleging willful and wanton conduct and fraud and deceit are not supported by any evidence in the record. The evidence clearly established that Zion made two efforts to repair a hopelessly worn-out roof, but without much result. Even if it were conceded that these repairs were made somewhat negligently (which the evidence does not establish), to charge Zion with willful and wanton conduct because the repairs did not succeed is completely unreasonable. Negligent work in repairing a roof is still negligence — it is not willful and wanton conduct. Mr. Toy’s testimony disclosed nothing in Zion’s conduct to sustain such an allegation.
As to fraud and deceit the basis for this count is certainly not to be found in the testimony of Loy and he was the only witness in his behalf. This count seems to have no basis whatsoever. Loy knew the condition of the premises when the lease in question was executed. The condition continued to worsen, according to Loy, but there was no deceit as Loy knew the condition of the roof better than anyone else. The written lease on which the covenant to repair is founded expired in 1971 and Loy renewed it on an oral, month-to-month tenancy. There was no testimony by anyone that Zion ever misled Loy as to the condition of the roof. Loy himself testified he had noticed leaks prior to February, 1971, when the oral lease began, but did not consider them serious. According to his testimony the first serious leaks occurred in March or April of 1972. The oral, month-to-month tenancy had already been in effect for over a year at that time, so obviously the leaks developed long after the inception of the month-to-month tenancy under which Loy invokes the covenant to repair the roof. At that time Loy, no doubt, knew the condition of the premises better than Zion did and if he was mistaken about the possibility-of the leaks becoming worse, there is no evidence that Zion was responsible for this misjudgment.
Indeed, if there was any fraud and deceit in this situation it was the other way around: it appears from the testimony of Mr. Tokowitz, Zion’s supervisor, that Zion was induced to forego the rent for a considerable period of time by promises of Loy made in late 1972 to pay all of the arrears as soon as he received an imminent Small Business Administration loan. Afterwards he completely repudiated his obligation to pay the rent.
As with the allegation of willful and wanton conduct, the testimony makes it evident that the count in fraud and deceit is not based on any facts and can be disregarded for purposes of this opinion.
We find no error of substance and hereby affirm our original opinion.
Judgment affirmed.
GUILD and SEIDENFELD, JJ., concur.