Opinion
April 28, 1932.
October 10, 1932.
Replevin — Landlord and tenant — Lease for term of one year — Negotiations for new lease — Extension period — Holding over after expiration of extension period — Removal of goods — Distress.
In an action of replevin to recover certain household goods, the record disclosed that the plaintiff rented a house from the defendant under a written lease for the term of one year and that the lease provided that in the event the plaintiff held over after the expiration of that year he would be bound by its terms for the period of another year. The lease also contained a provision that if the tenant attempted to remove or expressed an intention to remove any of the goods from the premises the entire rent for the balance of the term should at once become due and payable. The plaintiff testified that prior to the expiration of the first year he verbally notified the defendant that he would not remain in the premises thereafter because of certain unsatisfactory conditions and that thereupon the defendant agreed to make the repairs if the plaintiff would remain. The plaintiff held over after the expiration of the first year but the defendant did not make the repairs. Thereafter the plaintiff again notified the defendant that he elected to cancel the lease. The plaintiff remained in the house for approximately a month and a half after the giving of the latter notice and paid his rent. At the expiration of that period he began to move his household goods and the defendant levied upon them for the rent due for the balance of the term. The plaintiff was not in arrears in rent prior to his attempt to remove the goods.
In such case, where the plaintiff held over after the expiration of the extension period during which negotiations for a new lease were pending, he was bound by the terms of the original lease and the defendant was entitled to enforce its provisions.
Where a tenant gives notice of intention to vacate, before the end of the term, as provided by the lease, but at the end of the term, remains in possession under an extension, and at the end of the extension does not vacate, his possession after the ending of such extension is under the original lease and he is bound by its terms.
Where a tenant remains in possession after the expiration of his term without having made any new arrangements with his landlord he is bound according to the obligations of the preceding lease.
Appeal No. 28, April T., 1932, by plaintiff from judgment of C.P., Allegheny County, October T., 1927, No. 2055, in the case of Edward Finif v. George L. Gearing, landlord and N.S. Siskind, constable.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Modified.
Replevin to recover certain household goods. Before DITHRICH, J.
The facts are stated in the opinion of the Superior Court.
Verdict for defendant in the sum of $517 and judgment entered thereon. Plaintiff appealed.
Error assigned, among others, was the instruction of the court directing a verdict for the defendant.
J.R. Sheppard, for appellant. — The facts to establish the rescission of the lease are for the jury: Kiester v. Miller, 25 Pa. 481; Wilcox v. Montour Iron and Steel Co., 147 Pa. 540.
Eugene B. Strassburger, and with him E.J. McKenna of Strassburger McKenna, for appellee. — Where a tenant remains in possession after the expiration of his term without having made any new arrangement with his landlord he is bound according to the obligations of the preceding lease: Fidelity Trust Co. v. Lee, 38 Pa. Super. 33; McBrier v. Marshall, 126 Pa. 390; Patterson v. Park, 166 Pa. 25.
Argued April 28, 1932.
This is an appeal by plaintiff from a judgment in favor of defendant in an action of replevin sued out by plaintiff where the landlord-defendant had caused levy to be made upon certain household goods of plaintiff.
Edward Finif, the plaintiff, was the tenant of George L. Gearing, one of the defendants, of a dwelling at 3018 Hazelhurst Avenue, Baldwin Township, Allegheny County, Pennsylvania, under a written lease for one year beginning May 1, 1926, and ending on the first day of May, 1927, with a clause in the lease providing "If the tenant lawfully occupies the premises after the end of the term, this lease shall be in force for another term and so on from term to term as long as the relation of landlord and tenant continues."
The tenant, Edward Finif, after the expiration of the first term or year, occupied the premises during May, June, July and August of 1927. About the last day of August, with the rent fully paid up to first of September, 1927, said tenant began to remove his household goods from said premises when a landlord's distress warrant was served distraining the goods in possession of the landlord on the premises for the rent alleged to be due for the remaining months of 1927.
The lease further provided that tenant should "maintain and keep the premises during the term in good repair, including water pipes, their connections and all plumbing fixtures," and if the tenant "shall remove or attempt to remove or express or declare an intention to remove any of the goods and chattels from the premises — then and in such case, the entire rent for the balance of the said term shall, at the option of the lessor at once become due and payable as if by the terms of this lease it were all payable in advance."
Plaintiff occupied the premises after the end of the term, and on July 15, 1927, notified the defendant in writing that "he elected to cancel lease ...... on account of leaky conditions of house," and enclosed therewith check for rent to August 1, 1927.
The case was tried on the statement of plaintiff, affidavit of defendant and amended reply of plaintiff.
Quoting from the opinion of the court, DITHRICH, J.:
"In his reply to defendant's affidavit of defense, plaintiff averred that he notified the landlord defendant before the expiration of the original term, that he would not remain in the premises after the expiration of the term unless certain repairs were made, whereupon defendant agreed to make such repairs if the plaintiff would remain in the property for the ensuing year. At the trial he amended his reply by adding that he had notified the landlord defendant verbally before the expiration of the term, that he would not remain in the premises under the terms of the existing lease, and that said landlord defendant agreed to and accepted said notice of cancellation."
On the trial, appellant offered the testimony of himself and his wife to the effect that in a conversation with the landlord sometime between March and May, 1927, he told the landlord that on account of the landlord's failure to make certain repairs, he would not remain after the end of the term then expiring, and that thereupon the landlord promised him to make the repairs and told him that they would talk about the lease after the repairs had been made. The repairs consisted of finding the cause of a stain on the dining room ceiling caused by a leak somewhere in the house.
Defendant, appellee, denied that he had ever accepted cancellation of the lease.
Upon the conclusion of the testimony, the court gave binding instructions for the defendant.
Motion ex parte plaintiff for a new trial was made and refused. The refusal of this motion and the direction of verdict in favor of defendant are assigned as errors.
The terms of the written lease are clear and unambiguous, and provide for a continuance of the tenancy by holding over. Unless the lease was cancelled, it was continued for another year in all its terms when appellant held over. Appellant, if believed, would merely establish an extension of the written lease pending negotiations for a new lease, and as a new lease had neither been demanded nor tendered, he was still in possession under the written lease at the time the landlord levied on his goods.
If appellant was in possession after May 1, 1927, under an extension, the extension would have ended when he gave notice of cancellation on July 15, 1927. He continued in possession and paid rent for six weeks after that time. He was, therefore, in possession under the original lease by reason of holding over after the ending of the extension. Gallagher v. Wood, 101 Pa. Super. 354.
An analogous case is found in Fidelity Trust Co. v. Lee, 38 Pa. Super. 330, wherein it was held that where a tenant gives notice of intention to vacate, three months before the end of the term, as provided by the lease, but at the end of the term, remains in possession under an extension, and at the end of the extension does not vacate, but refuses to sign a new lease on the ground that certain repairs which had been promised him had not been made, he holds over another year, and is bound according to the terms of the preceding lease.
In the above case, our late Brother HENDERSON, J., says, on page 333:
"There was no new lease nor promise of one; there was no inducement to the tenant to hold over in expectation of a new lease. This is the plain case of a tenant remaining in possession after the end of the term and refusing to pay rent because of an alleged unperformed agreement to make repairs in connection with the contract for the first year. The facts bring the case clearly within the decisions in McBrier v. Marshall, 126 Pa. 390; Harvey v. Gunzberg, 148 Pa. 294; Patterson v. Park, 166 Pa. 25; Cairns v. Llewellyn, 2 Pa. Super. 599; Bakewell v. Turner, 36 Pa. Super. 283, which hold that where a tenant remains in possession after the expiration of his term without having made any new arrangement with his landlord he is bound according to the obligations of the preceding lease."
Where a case turns on whether there has been a surrender by a lessee of his term and an acceptance thereof by the lessor, the proof requisite to establish such surrender must establish a clear and explicit agreement, Rothbock v. McCargo, 6 Pa. Super. 134.
After careful reading of the testimony, we are of the opinion that there was not sufficient evidence to warrant the submission of the case to the jury. The judgment however must be modified. It cannot exceed the value of the goods $300.
The assignments of error are overruled, and judgment as modified is affirmed.