Harper & Brother Co. v. Jackson , 240 Pa. 312 ( 1913 )

Opinion by

Mr. Justice Moschzisker,

The plaintiff company brought this action in assumpsit against the defendant, Joseph T. Jackson, trading as Joseph T. Jackson & Co., to recover damages alleged to have been suffered as the result of its enforced removal from a property leased to it by the defendant. In June, 1908, Jackson, purporting to act as agent for the several owners of the Miles building, leased the fourth floor thereof to the plaintiff for a term of five years; the written lease was signed by Jackson & Co., as agent for the owners, naming them, and the lessee went into possession. In February, 1910, the owners notified the plaintiff that the defendant had no written authority to execute the lease and demanded that the lessee should vacate the premises on the thirtieth day of June, 1910. The plaintiff did not remove, but on August 29, 1910, entered into a contract with the owners whereby it agreed, in consideration of $1,000 received from the latter, to vacate on or before October 1, 1910. This writing stated, “It is distinctly understood and agreed that nothing in this agreement shall in anywise affect or prejudice the right of Harper Brothers & Co., to recover damages from J. T. Jackson & Co. for entering into an unauthorized lease, and it is further distinctly agreed and understood that said Harper Brothers & Co. is not removing voluntarily.” It appears from the evidence that the building in question had been inherited by a son and two daughters from their deceased father; that one of the owners, Mr. T. H. Miles, who was an executor of his father’s estate and was active in the management of the property for his sisters, knew of the proposed lease to the plaintiff before its execution by Jackson; that he approved of the demise and directed the defendant to enter into it; further, that the rent was regularly paid thereunder and remitted by the defendant to Mr. Miles who distributed it among the several owners until February, 1910, when the latter notified the plaintiff to vacate; it likewise appeared that the defendant acted in good faith throughout the transaction. Binding instructions were given for the defendant and the plaintiff has appealed from the judgment entered upon the verdict.

Since the lease purported to create a tenancy for more than three years and the agent was without written authority to execute it, the estate created thereby was in its inception but a tenancy at will, and as against the common owners it never became more than an estate from year to year: McDowell v. Simpson, 3 Watts 129, 136. Under the Statute of Frauds in this State, in order to ratify the lease so as to give it the force and effect of a term of five years, the rátification would have to be in writing: McDowell v. Simpson, supra; Dumn v. Rothermel, 112 Pa. 272, 281; Jennings v. McComb, 112 Pa. 518. Although the agent had no written authority to execute the demise, he had been orally directed to do so by Mr. Miles, who subsequently, on June 14, 1909, in writing, accepted the lease from the defendant with a written assignment to him, Miles, as “executor,” endorsed thereon. If no more, this was sufficient to sustain a finding that one owner had expressly ratified the act of the defendant in executing the lease, and entitled Harper Brothers & Co. to such possession as Mr. Miles himself could have given thereunder; hence, the plaintiff was in possession, at least, under color of title. The lessee was not defeated in an effort to defend its possession, nor did it vacate in pursuance of the notice to quit and rely upon the right to hold the defendant for a breach of an implied warranty of his authority to make the lease for the term stated therein; instead of so doing it remained in possession until August 29,1910, and then entered into the written contract with the owners of the building to which we have already made reference. By the terms of this contract it was mutually agreed that the plaintiff might continue to occupy the leased property until October 1,1910, and that it should receive the sum of $1,000, in consideration of which it was peaceably to surrender the entire premises at the expiration of the time specified; and this it accordingly • did. “Where the tenant, not under compulsion, but voluntarily, abandons the premises, there is no eviction”: 24 Cyc. 1130; and, “Where the tenant continues to occupy the premises after the acts which constitute a constructive eviction, it is a waiver of the eviction”: 24 Cy.c. 1134. The case comes down to this: the lessee, after a dispute Arose concerning the validity of its possession, for a valuable consideration, entered into a voluntary contract with the owners whereby it surrendered what rights it had under the lease; the plaintiff has received the consideration contracted for and cannot now complain that it suffered a loss through the transaction (Hopkins v. Everly, 150 Pa. 117, 118). As to the statements in the contract that the plaintiff was not surrendering the premises voluntarily, and that it reserved the right to hold the defendant, we may say that the parties to that writing could not by the language used alter the essential character of the contract or thereby preserve a right against the defendant, who was not a party to their agreement; nor could the plaintiff in this way affect the force of its subsequent- act in vacating the property at the time agreed upon.

The assignment of error is overruled and the judgment is affirmed.