Adams v. Dunn , 1916 Pa. Super. LEXIS 293 ( 1916 )

Opinion by

Head, J.,

The record before us discloses that no plea in abatement was filed, nor was any complaint made in the court below of the absence from the record of the name of any necessary party or of the improper joinder of the defendants. Had there been such plea or complaint, any necessary amendment could and doubtless would have been made. Indeed this court is invested with the right to direct such amendment to be made here if required to protect the interest of any party. But as the cáse was tried, the judgment rendered will effectually estop not only the present plaintiff, who is the real owner of the demised premises, but also her husband, who executed the lease for her by her authority, from bringing another suit on the same cause of action and will thus completely protect the defendants. The admissions in the answer and the testimony of the defendant, Annie E. Dunn, show that she regarded herself as one of the lessees and perhaps the active one. We conclude therefore the several assignments of error, founded on the alleged irregularities in the form of the action and the joinder of Annie E. Dunn as a párty defendant, cannot now avail, there having been a trial on the merits in the court below.

The lease was in writing, and the duty devolved on the learned trial judge to construe it. The term was for one year from the 2d day of March, 1914. Obviously, under all of the authorities, that term expired at midnight of the 1st day of March, 1915. The learned trial judge could do nothing else than so declare. It was conceded the lessees did not vacate the property at the termination of the lease but held over and continued to occupy the premises during all of the day of the 2d of March, 1915, which would be the first day of a new yearly term. They attempt to obviate the legal consequences of such a holding over by saying they did it under a mistake of law as to the time when their lease would expire; but intended to vacate in accordance with the notice they claim to have previously given. The plaintiff, denying as a fact that any such notice wás given, argues that even if it was, she had a right to regard the subsequent holding over as an abandonment of the intention to vacate of which the notice would be, at the most but evidence, and she acquiesced in the holding over.

This was not a case in which, by the terms of the original lease, the lessee was given the option to renew the same on condition that his election so to do should be evidenced by a written notice a period of time in advance of the end of the term. And so it was held in Murtland v. English, 214 Pa. 325, that no notice of such an election having been given, as provided in the lease, the mere holding over could not be conclusive on the landlord; because the lessee had not done what was required to bind himself by the exercise of the conditional option given him. There is nothing in that case to infringe upon the long established doctrine that where a tenant, after the expiration of his term, holds over with the acquiescence of the landlord, the lease will be considered renewed for another term. In Graham v. Dempsey, 169 Pa. 460, we quote the syllabus: “A tenant cannot escape liability for the rent of anofher term by giving notice that he is going out at the end of his year and then not going.” To that statement of the .law Mr. Justice Mitchell adds: “That actions speak louder than words is sound law as well as proverbial wisdom.” To the same effect is McBrier v. Marshall, 126 Pa. 390.

It appears the lessor still holds the deposit of two hundred dollars of the money of the lessee’s placed in her hand's, under the terms of the written lease, as a fund to indemnify her against loss by reason of the failure of the lessees to comply with the various covenants of the lease. She is entitled to hold this money as long as the relation of landlord and tenant continues to exist. When that relation is dissolved, but not until then, can she be called upon to return the same to the lessees or otherwise account for it. Whilst, in one aspect of the case, there is-some appearance of hardship to the present defendants, we are all of the opinion the record discloses no reversible error and our interference with the judgment.would be unwarranted. The assignments of errop are all dismissed.

Judgment affirmed.