McClurg v. Price & Sims , 1869 Pa. LEXIS 36 ( 1868 )

The opinion of the court was delivered, January 4th 1869, by .

Williams, J.

The plaintiff’s retention of a part of the demised! premises, and his refusal to deliver possession thereof to the de-l fendants, on demand, in accordance with the terms of his verball lease, did not constitute an eviction in law. It is doubtless true that there may be an eviction without an actual physical expulsion ; but there can be no eviction, actual or constructive, without j an antecedent possession. If this case turned on the question of eviction, the plaintiff might be entitled to recover rent for the portion of the premises actually enjoyed by the defendants. But it does not turn on this point. The evidence shows, and the jury have found, that the plaintiff leased his warehouse to the defendants, at an annual rent of $1500, payable quarterly; that at the making of the contract, he delivered to them possession of the three lower stories, and agreed to give them possession of the cellar and of the fourth and fifth stories, on demand; that he refused to deliver possession thereof, although repeatedly requested; and that the defendants were finally compelled, for want of room, to abandon the premises and to rent another house for the transaction of their business.

Notwithstanding the plaintiff’s deliberate and persistent refusal to perform his contract, he claims the right to recover compensation for the use and occupation of the portion of the demised premises actually enjoyed by the defendants, on the ground that they had the right to treat his goods as they would those of a stranger, and to remove them at his expense. But if the right be conceded, it does not follow that the defendants were bound to exercise it to the exclusion of all other remedies which the law gave them for the redress of the plaintiff’s breach of his contract, or that their failure to exercise it will prevent them from setting up any defence j to his claim for rent which they might otherwise make. But the I defendants had no right to remove the plaintiff’s goods. The law gave them no such remedy for his refusal to perform his contract. The evidence not only shows that his goods were in the portion of the demised premises which he withheld from the defendants, but that he was in the daily occupancy thereof for the purpose of selling his goods, and that he made sales from time to time, although part of the consideration of the stipulated rent was the good-will of his business. If the defendants had ejected the plaintiff and turned his goods into the. street, or removed them elsewhere, they would have been guilty of a trespass for which his breach of the contract would have afforded them no justification. Nor was their continuance “ in the enjoyment of the larger and more valuable portion of the building,” after their demand for possession of the residue and its refusal by the plaintiff, a waiver of any of their rights under the contract, or of any defence they might have to the plaintiff’s demand for rent, arising from his breach of the contract.

The jury have found that when the defendants demanded possession of the residue of the demised premises, the plaintiff gave them no definite answer, but put them off from time to time, without any positive refusal, leaving them to infer that he would comply with their request. And if the jury had not so found, the plaintiff was bound to perform his contract, and is answerable for all the legal consequences of its breach, unless its performance was actually waived by the defendants. Their continuance in the possession of the three lower stories, after the plaintiff’s refusal to deliver possession of the residue of the building, did not in itself amount to a waiver of their right to insist upon a strict performance of the contract. They had the undoubted right to retain possession of the three lower stories, and to hold the plaintiff responsible for his failure to deliver possession of the cellar and of the fourth and fifth stories, as required by his contract. The only question, then, under the facts of this case, is: Was the plaintiff entitled to recover any portion of the stipulated rent under the count for use and occupation ? He leased his warehouse to the defendants for an entire consideration, and his contract must therefore be regarded as an entirety. If the consideration is single, the contract is entire, whatever the number or variety of the items embraced in its subject. The principle is too well settled to admit of doubt, and too familiar to require tbe citation of authorities in its support, that for tbe part performance of an entire contract there can be no recovery, unless complete performance has been prevented or waived by the party entitled to demand it.

If the plaintiff had performed his contract he might have recovered on the count for use and occupation, under the statute of 11 Geo. II. ch. 19, which is in force in this state (Rob. Dig. 287), but having failed to perform it he was not entitled to recover, either upon a count on the contract of lease, or upon the statutory count for use and occupation.

The learned president judge of the District Court was therefore clearly right in instructing the jury that, if they found the facts to be as stated in the charge, the plaintiff was not entitled to recover in this action for use and occupation for the time the defendants occupied a portion of the building, and their verdict must be for the defendants.

Judgment affirmed.