Boice v. Zimmerman

Opinion by

Beaver, J.,

(after stating the facts as above) :

If the tenant houses were included in the lease and the lessee were entitled to the rents thereof, there would have been practically nothing due. If, on the other hand, the tenant houses were not included in the lease, then the lessee was in default, the landlord’s warrant was properly issued, and the defendants entitled to recover.

The only question involved in the case was, therefore, the simple one as to whether or not these tenant houses were included in the lease of the 16th of March and the lease for the following year which, although not printed in the paper-books, seems to have been dated prior to the 31st of March, 1894, and was in the main in the terms and language of the lease of the previous year. It is evident from an inspection of the lease itself that it does not include a self-contained description of the property intended to be leased. Something outside the description itself is necessary to determine just what is included in its terms. Under the authority of Ferguson v. Staver, 33 Pa. 411, and many later cases, parol evidence was undoubtedly admissible to apply the description in the lease to the land intended to be included therein. The plaintiff could have shown by parol testimony that the description included the tenant houses and the defendant might have shown that it did not. Neither party seems to have done this directly in a way that is in any sense satisfactory. Parol evidence was admitted by the court without objection to show that the tenant houses in the original negotiations made by Ellis Zimmerman, on behalf of his mother, with the lessee were excluded, and that the scrivener was directed to exclude them in the written lease. Whatever the object of the appellee in offering and introducing this testimony, it was evidently considered by the court as insufficient to be submitted to the jury for the purpose of reforming the lease on the ground of mistake, but was allowed to be considered as bearing upon the question of the application of the description contained in the lease to the premises intended to be included therein, and for this purpose we think it was competent and relevant.

The first assignment of error relates to the admission of the testimony of J. Ellis Zimmerman as to the rental value of the farm. We think the evidence was competent and was properly received as bearing upon the. question as to whether or not the houses were included in the written lease under the description contained therein. If the farm were actually worth $350 and the rents received from the tenant houses were equal to about the one half of that amount, the inference would be almost irresistible that the houses were not included and that there had been no intention to include them in the description contained in the written lease.

The portions of the charge embraced in the second and third assignments of error are entirely proper, when read in connection with the remainder of the paragraph from which they are taken. After a careful reading of all the testimony of both sides, so far as printed, relating to the description of the property contained in the lease and its application to the premises, we cannot now determine, as the court below was unable to determine from the lease itself, whether the tenant houses were included in the written lease or not. These two assignments select sentences and parts of sentences from an entire paragraph of the charge which should be read as a whole. Although correctly quoted as to language, they do not fairly represent the substance of what was said by the court. The whole paragraph is as follows :

“ The lease.here does not specifically, as I gather it from the reading of the lease, describe the tenant houses as being a portion of the property leased by Mrs. Zimmerman to Mr. Boice, nor does it include the tenant houses by description of metes and bounds. As I recall the description of the property in the lease, it, by adjoining owners, describes the property as being bounded by so and so, and containing one hundred and thirty-eight acres. Standing then upon the lease alone, looking to that, we find nothing therein to enable us specifically to state whether those tenant houses passed under that demise, under that lease from Mrs. Zimmerman to Mr. Boice. Interpreting it then by itself and without reference to any parol evidence, the law would be that, if these tenant houses had been used in connection with the farming operations or were necessary to the enjoyment and use of the farm, they would necessarily pass under the general terms of the lease to the tenant. To satisfy you that they had not been used in connection with tRe farm and that they were not necessary to its use and enjoyment, the defendant here, Mrs. Zimmerman, called her son Ellis Zimmerman, whose testimony on that point at least 'is not contradicted, and tells you that for the eight years which he was on the property these tenant houses were never used as tenant houses for farm purposes or in connection with the farm, and that they were not necessary to the use and enjoyment of the farm, but were rented to laborers who worked outside of the farm property ; so that, standing on the lease alone, with this testimony, if believed by you, you would be justified in finding that these tenant houses did not pass under the lease, for the simple reason that they had not been used in connection with the farming operations for a period of at least eight years, and that they were not necessary to the use and enjoyment of the farm property, which is corroborated I may say by the fact that they were not used during the whole period that Mr. Boice remained upon the property in connection with farm operations. So, not being necessary to the use and enjoyment of the farm and not having for some years been used in connection with it, I say you would be justified in finding in favor of the defendant, unless the contract between the parties was different.” There is no error in this, considering the theory of the case upon which it was submitted to the jury.

The quotation from the charge of the court in the fourth assignment of error is also incomplete and does not correctly represent the thought which the trial judge intended to convey. After commenting upon the testimony of Ellis Zimmerman in regard to the negotiations with the plaintiff, in which it was alleged that the tenant houses were specifically excluded, and that in giving direction to the scrivener for the preparation of the lease, he was directed to exclude them, and that of ’Squire Cloud who acted as the scrivener, the trial judge in his charge goes on to say: “So there is a conflict of testimony there, but not a very material one, I take it, because whether Mr. Zimmerman overlooked the instructions he intended to give and thought he had given to the ’squire, or whether the ’squire did not hear them or omitted by mistake the instructions, if given, to reserve these tenant houses, I say is not material. The material point in issue is, what was the contract between the parties ? ” In othei words, the question as to whether a mistake was made is not material. The real question is, what was included in th.e description contained in the contract ? Under all the facts of the case, the question of the application of the description contained in the writing was for the jury under proper instructions. Such instructions, as we view the case, they had. Their finding should not be disturbed.

It may be proper to say here that it would have been much more satisfactory to us, if the letters which were offered in evidence by the defendant, dated respectively October 19,1893, February 9, 1894, and March 31, 1894, and October 5,1894, and the second lease offered in evidence by the plaintiff, had been printed with the other testimony in the case.

A careful review of the entire case fails to disclose any error and the judgment is, therefore, affirmed.