BIJUR, J.The petition is in the usual form. Among the defenses interposed, in addition to the general denial, are surrender and a money claim for services as janitor, which is set forth both as a counterclaim and as a defense.
[1] The case appears to have been tried rather informally, and the record is not very clear; but it appears sufficiently that no personal demand for the rent had been made upon the tenant, and he was, therefore, entitled to a dismissal of the petition.
[2] It is also clear that the rent was payable semimonthly, and the • amount claimed by the tenant to have been due him was greater than the semimonthly rent due when the petition was filed, or at the time of the alleged demand; hence the tenant was entitled to have this defense presented to the jury.
[3] Finally, the landlord, apparently to negative the plea of surrender, showed that subsequent to the alleged surrender he had obtained a final order in summary proceedings, and he claimed that this conclusively established the relationship of landlord and tenant at the time of the surrender. But the same evidence indicated that the lease had by that final order been terminated. Consequently the present proceedings, brought under the same lease,, could not be maintained.
Order reversed, and new trial granted, with costs to appellant to abide the event. All concur.