Pollman v. Morgester , 1882 Pa. LEXIS 205 ( 1882 )

Mr. Justice Trunkey

delivered tbe opinion of tbe court, April 17th 1882.

The lease was for the term of one year, and contained a covenant that the lessees should have the option to extend the term to five years by giving notice to the lessor sixty days before November 1st 18781 Notice was not given and the term was not extended. The lessees agreed to pay an annual rent of $500. They further agreed to erect an addition to the hotel building, enclose and lay the floors, but were not bound to finish the same any further, except at their option; and were to “ be allowed a credit upon the first year of one hundred dollars.”

The lessees were suffered to hold over. This could not extend the time for performance of the covenants which were to have been performed within the term. Had they extended the term, then the contract was to build within the first year of the term and receive therefor a credit of part of the rent which was payable in money. Taking the agreement as a whole, it is clear that the parties stipulated for the building of the addition within the year, or term, which ended November 1st 1878. Such building would advantage the lessor by enhancing the value of his property. Its erection would have been equivalent to payment of a large portion of the rent in advance, if the term were five years. The covenant was inducement to lease. This is not a mere covenant to make improvements within the period to which the term might be extended : the lease is only for the term of one year, and the lessees covenanted to pay $500 and erect the building within that term. The manifest intention was that the improvement should be made within a year from the beginning of the term, whether extended or not.

The lessor’s right of action was complete for the breach of the covenant to build. There is no evidence of waiver or release of the right. Holding over by the lessees with tacit assent of the lessor, may have renewed the lease for such covenants as were applicable to a tenancy from year to year. The covenant to build was not applicable; it was already broken.

We are of opinion that the court erred as to the effect of such holding over upon the broken covenant to erect an addition to the hotel building, and the assignments of error must-be sustained.

Judgment reversed, and venire facias de novo awarded.