Sinberg v. Davis , 285 Pa. 426 ( 1926 )

Plaintiff, under date of February 10, 1923, leased to the four defendants, trading as Bastian Davis, premises Nos. 113 and 115 So. 13th Street in the City of Philadelphia for a term of nineteen years from the first day of January, 1923, at the yearly rental of $20,000, payable monthly. Lessees agreeing, among other things, to pay, as further rental, all taxes, water rent and assessments against the premises, the water rent to be paid on or before the 15th day of May, and the taxes on or before August 15th of each year, and not to assign the lease or sublet the premises or any part thereof without the written consent of the lessor, who was given the option of treating as an assignment any levy or sale or other legal process against lessees, or any insolvency or bankruptcy proceedings.

Two of the lessees subsequently withdrew from the firm, and, on August 11, 1924, the two remaining partners sublet a portion of the premises to one Shotkin, intervening defendant, the lease being formally approved by plaintiff. On the same day, another of the partners withdrew, leaving Lucille M. Bastian sole owner of the business which she continued to conduct under the original firm name, paying rent to plaintiff. September 16, 1924, a supplemental lease was made to Shotkin, and also approved by plaintiff. June 12, 1925, on petition in bankruptcy against Lucille M. Bastian, individually and trading as Bastian Davis, a receiver was appointed. July 10, 1925, plaintiff petitioned the United States Court, for leave to terminate the lease and enter an amicable ejectment in the Court of Common Pleas of Philadelphia County; subsequently this petition was granted and the trustee in bankruptcy directed to deliver to plaintiff possession of the property.

September 9, 1925, plaintiff entered an amicable action of ejectment in the court of common pleas averring lessees had defaulted in the payment of rent and taxes, and that the bankruptcy proceedings against the surviving partner and lessee, and against the firm, followed by a sale of the assets by the receiver, constituted a violation of the terms of the lease. Shofkin thereupon presented a petition asking that three rules be granted, (1) to show cause why the judgment should not be stricken from the record; (2), to show cause why the judgment in ejectment should not be opened and he permitted to intervene and defend and that the writ be set aside; and (3) to show cause why the writ of habere facias possessionem issued by plaintiff in the proceedings should not be vacated as to that part of the premises occupied by him. The court discharged the first and third rules, and made absolute the second so far as to permit petitioner to intervene, but as to other matters the rule was discharged. From this action of the court the present appeal is taken.

Appellant's contention is that by approval of the sublease the lessor accepted the subtenant, who attorned by paying rent direct to the original lessor, and consequently the judgment in ejectment should not affect him, or that part of the premises of which he is in possession. In support of this contention he points to the fact that the sublease to him was for a term twenty-three days longer than the original lease to defendants, and that the original lease gave defendants the right to receive a percentage of the rentals and such approval was in fact secured. The difficulty with this position is that the record is destitute of anything tending to show an intention to cancel the original lease, either in whole or in part, so as to relieve the lessees or those claiming under them from performing the covenants contained in the agreement. Mere approval of the sublease, even for a consideration, would not accomplish this result, in absence of an express understanding to that effect. Such approval was merely a waiver of the stipulation against subletting. Appellant accordingly contracted with notice of all terms and conditions of the original lease and was bound thereby and had full knowledge that his lessors, and those claiming under them, were liable to be ejected for breach of any covenant not expressly waived. At the time the judgment was entered four months' rent remained in arrears, also unpaid taxes, bankruptcy of the lessees and sale under execution of the personal property on the premises. These defaults constituted a breach of four distinct covenants, not one of which was denied by appellant in his petition. Although it is averred he expects to be able to prove that no default on the lease existed, and that the receiver for the bankrupt offered to pay rent for the premises, and also that rent was subsequently tendered by the bankrupt and accepted by the landlord, we find no averment of the amount tendered or to whom the tender was made, nor other facts set forth tending to show a bona fide offer to pay the sum in arrears.

Petitioner further asserts a custom to pay taxes on or before August 31st of the year in which they fall due. That custom could not be proved against the express provision in the lease requiring payment of such charges on or before August 15th. Furthermore we find no averment that the taxes were paid or tendered on or before August 31st, and no denial that they were unpaid at the time the confessed judgment was entered, which was September 9th.

Appellant also claims the agent improperly caused judgment to be entered on the lease in his own name, as that of plaintiff's principal appeared at the conclusion of the agreement. The lease was made in the name of "John H. Sinberg, agent for Joseph V. Horn" and signed "John H. Sinberg, Agt." By its terms it purported to be a contract between Sinberg and lessees and authorized the confession of judgment in favor of lessor in case of default and "for the recovery by the lessor of possession of the herein demised premises." This language is sufficient authority for the entry of judgment in the manner pursued by plaintiff, and the fact that the principal's name was inserted in the instrument, and that it bore a memorandum "approved by Joseph V. Horn" is immaterial: Isman v. Niederman,74 Pa. Super. 175, 178, and cases cited. Lessees, and consequently appellant who claims under them, are estopped from denying that Sinberg was their lessor, and even assuming the procedure to be irregular, the lease contains a waiver of all errors and defects in the proceedings which is binding on one claiming under lessees: Curry v. Bacharach Quality Shops,271 Pa. 364. No harm resulted to appellant by naming Sinberg as a party plaintiff, as a judgment in the proceedings is binding on his principal and protects the lessee from further actions.

We find nothing in the record to require the opening of the judgment.

The judgment is affirmed at costs of appellant.