Hand v. Suravitz

Opinion by

Mr. Chief Justice Paxson,

The lease between B. C. Davidson and the defendant, contained a provision that the defendant (lessee) shall pay his own gas and water bills. It also contained a clause of forfeiture in case the lessee should not keep and perform all the terms, provisions and stipulations of the lease, or any of them. Then follows the further provision that, “At the end of said term, whether the same shall be determined by forfeiture or expiration of time and notice to quit, it is agreed that an amicable action of ejectment may be entered in the court of common pleas of Lackawanna county, in which the lessor shall be plaintiff, and the lessee, defendant; that judgment shall be entered Thereupon in favor of the plaintiff for the premises above described, to have the same force and effect as if a summons in ejectment had been regularly issued, legally served and returned, and that writs of habere facias possessionem, with clause of fi. fa. for all costs, may be issued forthwith.” By the last paragraph of said lease it was “ understood and agreed that all the conditions and stipulations herein contained, shall bind the heirs, executors, administrators and assigns of the said parties.” Davidson, the lessor, subsequently assigned the lease to the plaintiff, who had become the owner of the property.

The defendant entered into the occupation of the demised premises, and remained in possession for about seventeen months, and during that time paid no water rents. The plaintiff, by virtue of the power contained in the lease, caused a judgment to be entered in ejectment against the defendant for the premises, and a writ of habere facias possessionem to be issued. Upon the application of the defendant, the court below stayed the writ, and granted a rule to show cause why the judgment should not be opened and defendant let into a defence. It is not denied that he had notice to pay the water rent, and that he did not pay it. The court below held that the stipulation in the lease, that the “lessee shall pay his own gas and water bills,” did not admit of the construction that a failure to keep and perform it would work a forfeiture of the lease, and made the rule to open absolute, and ordered the judgment to be vacated.

We do not regard the clause in reference to the water rents, as a mere declaration as to who is to pay for the gas and water furnished on the premises. Nor do we think there is any ambiguity as to who the water rents are to be paid to. • The water rents are payable, as every intelligent man knows, to the water company furnishing the water. When, therefore, a tenant covenants in his lease to pay the gas bills, or the water rents, it is as much a condition of his holding as any other covenant therein. If they are not paid, and the tenant vacates the premises, the landlord is obliged to pay them, or have the gas and water cut off from his premises. The latter has a right to protect himself against this, and to enforce a lawful covenant for that purpose in the lease. It was held in Fernwood Masonic Hall Association v. Jones, 102 Pa. 307, that where, in a lease, the lessee covenants to pay the lessor for all gas consumed on the premises, a sum due for gas consumed is to be regarded as rent in arrear, and may be distrained for. While forfeitures are not favored in the law, I apprehend no one will dispute the right of a landlord to forfeit for nonpayment of rent, where apt words' of forfeiture are embodied in the lease. The right is equally clear to forfeit for nonpayment of water rents where that is the agreement of the parties. In the case in hand, the defendant distinctly agreed that his lease might be forfeited for such nonpayment. He could have avoided it by paying the bills.

The order of the court below, opening and vacating the judgment, is reversed and set aside, and the judgment is reinstated.