¶1Plaintiff in error sued the defendant before a justice of the peace and recovered a judgment against him for $22.18 and costs, and defendant appealed to the county court.
¶2On the trial in that court, defendant admitted several items of plaintiff’s claim amounting to $82, and plaintiff admitted to be just items of defendant’s account amounting to the sum of $84.82. The parties submitted to the jury their evidence to sustain their respective disputed claims and -the jury, on December 14, 1881, found for the defendant in error, and assessed his damages at $52.42, and on the 21st day of November, 1882, in vacation, the court rendered judgment for defendant against plaintiff in error for the amount of said damages and costs. To reverse the judgment this writ of error is prosecuted.
¶3Several errors were committed by the court below and are severally assigned, one of which is that the court erred in entering up the judgment in vacation eleven months after the rendition of the verdict. This is fatal, but we prefer to reverse the judgment and remand the case on the ground-that the verdict of the jury is not sustained by the evidence.
¶4One item of defendant’s claim is for lumber, $50, and another for use of stalk field eight years at $20 per year. The defendant made no claim to either of these items before the justice of the peace, as he undoubtedly would have done, had they possessed any merit, and he admits in his testimony given on the trial below that he never charged the lumber in his book against the plaintiff in error, and the reason why he made no claim to pay for the lumber before the justice was, that he did not then think he was entitled to pay.
¶5He further testified on the trial, that he never made any charge on his book for the rent of the stalk field because he did not, at that time, think he had any right to pay for the same and for a similar reason he did not claim pay for the stalk field on the trial before a justice of the peace.
¶6Evidently it was an afterthought, suggested by the strong desire of the defendant to defeat a recovery on the plaintiff’s claim.
¶7Where two parties understand they are mutually receiving and rendering favors with no present design to make them pecuniary charges against each other, no recovery can be had by either. Dunlap v. Allen, 90 Ill. 108.
¶8On the merits of these items, the evidence preponderated in favor of the plaintiff in error.
¶9On the item for lumber, according to defendant’s own showing, he built a corn crib on the rented farm, for his own use, with the express understanding that when he left the place he could take the lumber with him, or plaintiff would pay him for it. It is not claimed that plaintiff refused to permit defendant to remove the lumber, or that any demand was made upon him for it. In the absence of such evidence the defendant was not entitled to recover its value.
¶10As to the item of rent of stalk field, the plaintiff in error testified positively, that when he rented the ground, he reserved the stalk field. This was not contradicted by the defendant except he testified that nothing was said about the stalk field in the contract; but the action of the defendant in making no charge in his book for the stalk field among his other charges, and in making no claim for it on the trial before the justice of the peace, corroborates the testimony of the plaintiff and establishes that by the contract lie reserved the use of the stalk field. This being so, the contract must govern, no matter what custom may have prevailed.
¶11These two items being disallowed, in no possible way could the damages of the defendant amount to the sum given by the jury. The judgment therefore must be reversed and the cause remanded.
¶12Judgment reversed.