Smucker v. Grinberg , 1905 Pa. Super. LEXIS 97 ( 1905 )

Opinion by

Rice, P. J.,

In this action of assumpsit the plaintiff sought to recover rent from January 1, 1904, to March 29, 1904, under a lease which provided that it should continue from year to year “ until either party shall give four months’ previous notice of the intention to determine such term.” Undoubtedly one purpose of this provision was to put the landlord and the tenants on equal footing, so that the former should know a reasonable time before the end of the year whether he must seek another tenant and the tenants should know whether-they must seek another place of business: Lane v. Nelson, 167 Pa. 602. The lessees claim that their liability for the stipulated rent beyond December 31, 1903, the end of the then current year, ceased on that date, because in November they “vacated the premises in accordance with a written notice received from the plaintiff under date of August 10, 1903.” That the letter of that date —and this is equally true of the letter of August 25 — -was not such a notice as was contemplated by the clause of the lease above referred to will be best shown by quoting it verbatim. It reads: “ Gentlemen I write to inform you that # the increased valuation of my property makes an advance of rent necessary, it should be $4,000, but to you I will make it $3,600 being $300 per month on the terms of present lease. Will extend the lease three to five years at this advance, or go on from year to year as you may prefer from January 1, 1904. Your tenancy has been entirely satisfactory to me and I trust it may be to your interest to stay in store 605 Market St. many years to come. Hoping to hear from you before the close of this month, I am very respectfully yours.”

This falls far short of a notice to vacate at the end of the year. It was an offer to renew the lease at an increased rent, but it was not coupled with a notice, expressed or implied, that if the offer was not accepted the lease would be terminated. It was not even an alternative notice to quit, which, according to some authorities is bad. On the contrary, as the counsel for the appellee well said, it was an invitation to remain at an increased rental. The defendants might have been warranted in surmising that if they did not accept the offer the plaintiff would give the requisite notice before the end of that month, but they must be presumed to have known that if it was not given their right to hold the premises for another year would be secure. If they desired to terminate the lease at the end of the year 1903 they could have done so by giving the requisite notice, but the plaintiff’s letter above quoted cannot be construed as giving them an option to terminate it without giving such notice.

Was there an acceptance of a surrender or an eviction? A surrender of demised premises, in order to be effectual to release a tenant from payment or rent,- must be accepted by the lessor, and the burden of proof is on the lessee. A tenant for years cannot relieve himself from his liability by vacating the demised premises during the term and sending the key to his landlord. The landlord is not bound, in relief of his tenant who-had abandoned the premises, to rent them to anyone who may apply, but may rent them and hold the tenant for the difference unless he has accepted a surrender. Nor is his entry to make repairs after the tenant has abandoned the premises either an acceptance of a surrender on an eviction: Auer v. Penn., 99 Pa. 370; Lane v. Nelson, 167 Pa. 602; Lipper v. Bouve, 6 Pa. Superior Ct. 452; Gardiner v. Bair, 10 Pa. Superior Ct. 74. Many more cases might be cited to sustain these propositions but it is unnecessary. They cover the material allegations of the affidavit of defense relative to the question of surrender.

The rent was payable monthly in advance. It seems needless to say that the plaintiff’s sale of the premises on March 29, 1904, and delivery of possession to the purchaser did not constitute an eviction which relieved the defendants from liability for the rent which had accrued and was overdue at that time.. The only other averment of the affidavit of defense relative to the question of eviction which need be noticed is the following : 0 The deponent requested the plaintiff to send the keys for said premises so that the sash and the glass of said sash could be replaced.. The plaintiff, however, proceeded to have this work done,” etc. At what period of time after they had .abandoned the premises this occurred is not stated; but passing that defect, the obvious and conclusive objection is, that proof of all that the defendants allege in this part of their affidavit would not warrant a jury in finding that the plaintiff refused the defendants the right to re-enter during the term or even that he refused to redeliver the keys to them upon proper demand. He was not bound “ to send the keys ” to them and his failure to comply with that request was not an eviction. The plaintiff was clearly entitled to judgment for the rent claimed.

/ We come to the question- of practice raised by the last assignment; of error, whieh reads: “Because the learned court did hot file .an- opinion and gave judgment by the simple entry ‘rule absolute.’ ” In Shea v. Wells, 8 Pa. Superior Ct. 511, we said: “ When plaintiff moves for judgment for part of his demand under the Act of July 15, 1897, P. L. 276, it would be good practice to require him to specify the part as to which he claims the affidavit to be insufficient, and to set this forth in the rule to show cause. If that be done the defendants will know with certainty the issue he is called upon to meet, the record will show that the court was called upon to decide, and the hearing on appeal from the discharge of the rule will be confined, as it ought always to be, to a review of the decision upon the point raised in the court below.” The plaintiff followed the practice here indicated. His statement embraced two distinct claims: the first for $738.87, the rent that had accrued from January 1, 1904 to March 29,1904; the second for $15.45, the amount he had been compelled to expend for repairs by reason of the defendants’ breach of their covenant in that regard. The rule on the defendants was “ to show cause why judgment should not be entered against them for so much of the plaintiff’s claim as to which the affidavit of defense is insufficient, viz.: the claim for rent from January 1, 1904, to March 29, 1904, in amount seven hundred and thirty-three dollars and eighty-seven cents ($733.87), with interest from date last mentioned.” • In Pierson v. Krause, 208 Pa. 115, upon which the plaintiff’s counsel relies, the rule to show cause did not identify the part of the claim as to which the affidavit of defense was deemed to be insufficient except by amount. It left that matter to inference. Here it is described with great particularity, as we have seen. The making absolute of the rule to show cause necessarily implied an adjudication that the portion of the affidavit of'defense relative to that claim was insufficient in law. The record leaves no room for doubt upon that subject. Justice Brown, who delivered the opinion in Pierson v. Krause, said that in every case arising under the act of 1897, the better practice and one which ought to commend itself “ is an adjudication by the court in its own words of that portion or portions it adjudges insufficient.” But he did not hold that the filing of an opinion, .desirable as it is, is absolutely indispensable in every case. On the contrary he said: “ In making absolute the rule for judgment for a portion of the plaintiff’s claim when the application for it is in proper form, pointing out specifically the insufficiency, the court, perhaps, adjudges what portion or portions of the affidavit of defense are insufficient, and the record may show what the adjudication is.” We think the practice followed in this case was in substantial conformity with that decision.

Judgment affirmed.