Bradley v. Citizens' Trust & Surety Co. , 7 Pa. Super. 419 ( 1898 )

Per Curiam,

On March 16,1892, the defendant company through its agent leased to plaintiff premises No. 6,077 Vine street, Philadelphia. The lease was put in writing but for some reason was never signed. It ran for one year from March 21,1892, the rent being fixed at $240, payable in monthly instalments of $20.00 each in advance. In case of holding over it was provided that the lease should continue “upon same terms and conditions as are herein contained for a further period of one month and so on from month to month until terminated by thirty days’ notice by either party.” It also contained the following stipulation: “ Repairs to be made to bulk windows so that they will not leak, hand rail to be constructed in staircase to second floor, terra cotta collars to be put in chimneys and necessary plumbing to be done to keep cellar dry.” The plaintiff occupied the premises for more than four years, paying during all that time only the first month’s rent. Finally the landlord distrained for the rent due from December 21, 1895, to June 21, 1896, and hence this action of replevin.

At the trial the plaintiff rested her case solely on the ground that the defendant at the time of the leasing agreed by parol to make certain repairs including some not mentioned in the writing, that this agreement amounted in legal effect to a common-law condition precedent to the right to demand the rent, and that the repairs not having been all made, nothing could be collected by distress or otherwise. This parol agreement was positively denied by the defendant’s agent; the only evidence offered in its support was the testimony of the plaintiff’s daughter, who represented her mother in making the contract. After specifying the repairs demanded, she alleges that she said to the agent, “ If you will do this I will now pay you one month’s rent, but will pay no more rent until the repairs are done; and if that is satisfactory I will pay you the rent now,” and that he said; “Everything should be done before any more rent was due,” and I said, “Very well.” The learned trial judge would have been in error had he held in response to the point put by the plaintiff’s counsel that the agreement thus testified to by the daughter, even if made, constituted a condition precedent. It will be observed that the agent simply promised that the repairs should be made before the next instalment of rent fell due, and to this the daughter assented. The court might well have told the jury that accepting the daughter’s statement as true, no condition was created. “ Whether a promise is on its face conditional or whether words used in connection with it subject it to a condition, is a matter of law for the court, supposing those words to be proved: ” 1 Wharton on Contracts, 554. “ Courts are disinclined to construe the promise to do certain things within a given time in consideration of the payment of money as a condition precedent, unless compelled to do so in order to carry out the express intention of the parties: ” 7 Am. & Eng. Ency. of Law (2d ed.), 120. “ Conditions that absolutely defeat a right or an estate are odious, and where the language employed can be resolved into a covenant it should be so construed: ” Parschall v. Passmore, 15 Pa. 295; McKnight v. Kreutz, 51 Pa. 232. Looking at the language used in the present case, and all the extrinsic undisputed facts which may also be considered (1 Wharton on Contracts, 553), it is impossible to suppose that the agent intended to make such a contract as the plaintiff sets up to escape the payment of rent. As it was the court left the question to the jury, telling them to render a verdict for the plaintiff if they found the execution of the contract, and of this the plaintiff at least should not complain. The jury evidently concluded that only an agreement, the breach whereof might be compensated in damages or by deductions from the rent had been shown. The defendant’s evidence was to the effect that all the repairs stipulated for in the writing had been made, and the plaintiff offered no evidence as to the pecuniary damages, but chose to defend on the alleged technical condition and its nonperformance. This defense failing, the verdict was therefore for the defendant for the full amount of the rent claimed.

As no legal defense was made out by the plaintiff’s evidence and the court would have been warranted in directing a verdict for the defendant, it is hardly necessary to consider the alleged errors as to the admission in evidence of the bills for repairs made on the premises, and the written admissions of the plaintiff and her daughter relating to the same matters. The bills and writings were all offered at the same time. The only objection made when they were so offered was the following by the plaintiff’s counsel: “ I object to the bills because they have not anything at all to do with the case.” It will be seen that no objection was made on the ground that the bills had not been sufficiently proved, nor was it suggested that the work charged therein had not been done. The two written admissions were not objected to at all. These admissions and all of the bills save one, which was for $2.00 for “ repairing roof,” related to plumbing done on the premises, and the evidence was properly introduced as tending to show compliance by the defendant with the unsigned written lease. As to the trifling $2.00 item, it probably referred to something done on the roof of the bulk windows. At any rate, its admission under the circumstances was harmless error. There is nothing in the record to warrant a reversal, the specifications of error are therefore overruled and the judgment affirmed.

Note. The foregoing opinion was prepared by our lamented Brother Wickham, and is now adopted as the opinion of the court.