Rothermel v. Dumn

Opinion,

Mr. Justice Clark:

When this ease was here before, we held that under the statute of frauds, the alleged parol lease, from Maria Stichter to Rothermel, was but a lease at will, which, by payment and acceptance of the rent, had been expanded into a lease from year to year: Dumn v. Rothermel, 112 Pa. 272; and it is conceded, as the case is now presented, that this was the legal effect of the agreement referred to.

The deed from Maria Stichter was dated December 22,1881, and Dumn claimed the rent from that date. When the parties met in Bernhard’s office, Rothermel insisted upon his right to a lease for ten years, which right Dumn denied, and this was the subject of dispute between the parties. The receipt, which was there written and signed, embodied the terms of a new lease for the term of one year only, the rent specified being $60. Dumn testified that when the receipt was signed, it contained the contract of the parties; that, as he was only entitled to the rent after the date of the Stichter deed, the receipt was left with Bernhard to insert that date as the beginning of the term, which was afterwards done. Rothermel denied this statement of Dumn, and alleged that he signed the paper only after it was distinctly understood that no new lease was thereby created, and that his rights under the contract with Maria Stichter were not to be affected thereby. Dumn was corroborated by the paper itself, and Rothermel by the testimony of Bernhard.

The fact that the receipt was written and signed is not denied, nor is it disputed that the date of the Stichter deed was for some purpose to be inserted. The first question of fact for the consideration of the jury, therefore, was, whether or not the writing referred to was in fact what it purported to be, a lease for oue year from the 22d of December, 1881, as testified by Dumn; and, if that was determined in the negative, then, second, was the 22d of December, 1881, adopted, without prejudice, as a modification of the alleged existing contract, as to the beginning and end of the ensuing year, under the Stichter lease,'or under a new lease from Dumn as Rothermel’s rights might afterwards appear, to the rent of which year the sixty dollars was to be applied. It is not seriously denied that this date was to be inserted; indeed the testimony is wholly to this effect; the paper admittedly remained in the hands of Bernhard, by the agreement of the parties for this express purpose. If either of these questions of fact were found for the plaintiff, then the term, ended December 22, 1882, and the notice to quit, dated September 20,1882, was in time. This is substantially what was affirmed in the plaintiff’s first and second points and the charge taken as a whole is to the same effect.

Upon an examination of the whole case, we are of opinion that the rulings of the learned court were right, and

The judgment is affirmed.