Auer v. Penn

• Decision Date: 13 February 1882
• Citation: 99 Pa. 370
• Parties: Auer v. Penn.
• Court: Pennsylvania Supreme Court

99 Pa. 370

Auer v. Penn.

Supreme Court of Pennsylvania.

February 13, 1882

January 17, 1882

1. A surrender of demised premises by the tenant during a term, in order to be effectual so as to release the lessee from liability to pay rent, must be accepted by the lessor, and the burden of proof is upon the lessee to prove such acceptance.

2. Where a lessee vacates premises during his term, delivering the keys to the lessor, who retains them, but notifies the lessee that he will hold him for the rent, there is no room for the presumption of such a surrender as will relieve the lessee from liability on his covenant to pay rent.

3. Where, in such case, the landlord puts a bill upon the vacated premises and rents the same to another tenant, having first notified the lessee of his intention so to do, said lessee is not relieved from liability except for the amount of rent received by the landlord from the new tenant during the lessee's unexpired term.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ.

GREEN J. absent.

ERROR to the Court of Common Pleas No. 1, of Philadelphia county: Of July Term 1881, No. 18.

Covenant by Joseph Penn against John Auer, upon a contract of suretyship annexed to a lease. Upon a former writ of error, a judgment entered for plaintiff for want of a sufficient affidavit of defence was reversed, and a procedendo awarded See 11 Norris 444.

On the trial, before BIDDLE, J., the following facts appeared: On October 15th 1875, the plaintiff leased a certain house to one Jacob Brown, for the term of five years, at the yearly rent of $360, payable in equal monthly payments of $30 each. The lease contained the usual covenants on the part of the lessee to pay the rent as due, & c. At the foot of the lease was the agreement of suretyship, signed and sealed by the defendant, John Auer, whereby he covenanted that the lessee should faithfully perform all the covenants in the lease on his part to be performed, otherwise immediate recourse may be had against the surety without any prior proceedings against the lessee.

The lessee entered, paid his rent regularly to January 1877, and moved out, without notice to his landlord, on February 13th 1877, because, as he alleged, of defective drainage; after removal he took the keys to the landlord's agent, J McGeogh. McGeogh testified that he declined to receive them, and stated that he would hold his surety for the rent, whereupon Brown threw them on the floor and went out. Brown testified that McGeogh took the keys, saying it was all right, but he admitted that McGeogh said he would hold John Auer, the surety, for the rent.

McGeogh sent to Auer the following letters on the days of their date.

" PHILADELPHIA, February 17th 1877.

Office 2228 North Fifth street.

JOHN AUER, Esq. Dear Sir:--The rent of No. 1836 Germantown avenue was due on the 15th instant, and I would like you would call up and pay it. Brown, the tenant for whom you are security, having removed, of course we will have to hold you for the rent.

Yours, respectfully,

J. MCGEOGH."

" February 21st 1877.

JOHN AUER, Esq. Dear Sir:--The tenant of 1836 Germantown avenue having removed, and as under the lease you are security, I shall look to you for the payment of the rent. If you desire it, I shall place a bill on the house and rent it for you; but in no case will we release you until the expiration of the lease. You will take notice that unless I hear from you in this matter within a few days, I shall proceed to rent the house at your risk, holding you, of course, for the rent until the expiration of the lease.

Yours, respectfully,

JAMES MCGEOGH,

Agent for Jos. Penn, 2228 North Fifth street."

" February 23d 1877.

JOHN AUER, Esq. Dear Sir:--If I do not hear from you to-day, I shall put a bill on the property 1836 Germantown avenue to-morrow, still holding you, as before stated, for rent until the expiration of the lease. Yours, respectfully,

J. MCGEOGH, Agent for Joseph Penn."

" PHILADELPHIA, March 1st 1877.

JOHN AUER, Esq. Dear Sir:--A party named Frederick Metzger is desirous of renting 1836 Germantown avenue; he is willing to pay thirty dollars per month. If you have any objection please let me know. If I do not hear from you by tomorrow morning, I will rent it to him, and still hold you as security.

Yours, respectfully,

JAS. MCGEOGH, Agent for Joseph Penn."

" PHILADELPHIA, September 15th 1877.

JOHN AUER, Esq. Dear Sir:--Frederick Metzger, present occupant of 1836 Germantown avenue, is removing. John Riehl, a former occupant of the place, desires to rent it. Unless I hear from you to the contrary, I shall rent it to him, still holding you, of course, for the rent as security on the lease.

Yours, respectfully, JAMES MCGEOGH,

Agent for Joseph Penn, 2228 North Fifth street."

" January 2nd 1878.

JOHN AUER, Esq. Dear Sir:--Store 1836 Germantown avenue is again vacant; there is a party named Sylvester Kreider who wishes to rent it as a barber shop. If you have no objections I will rent it to him, still holding you, of course, as security under the lease. Yours, respectfully,

J. MCGEOGH,

Agent for Joseph Penn, No. 2228 North Fifth street."

" January 21st 1878.

JOHN AUER, Esq. Dear Sir:--Premises 1836 Germantown avenue being idle, I shall put a bill on the same, to rent, unless I hear from you to the contrary, holding you, of course, as security under the lease. Yours, respectfully,

J. MCGEOGH, 2228 North Fifth street."

" May 13th 1878.

JOHN AUER, Esq. Dear Sir:--There is a party named William Piersons, who desires to rent the house 1836 Germantown avenue, for a saloon. I can not get any more than $25. If I do not hear from you by to-morrow morning I shall rent it, holding you of course under the lease as security.

Yours, respectfully,

J. MCGEOGH, 2228 North Fifth street."

No answers were received to these communications. McGeogh rented the premises to various tenants from time to time, credited the lessee with the rents received from them, leaving a balance due, at the expiration of the term, of $355, for which this suit was brought.

The defendant presented the following points:--

1. " That if the jury find that the premises leased were unhealthy and untenantable by reason of impure air, arising from defective drainage, which existed when the lease was made; that this fact was known to the plaintiff, and he refused to remedy the defect, and that the tenant removed in consequence thereof, the plaintiff cannot recover in this suit. The tenant is not bound to repair defects existing when he leases the premises."

Answer. " I was going to say that that is a proposition of law, which it does not seem to me necessary to answer, in one way or another, here, because there is no testimony to that effect; on the contrary, the testimony on both sides has been that the house was perfectly satisfactory at the time it was leased, that Mr. Brown lived in it about a year afterwards. I do not think the state of facts arises here which makes it necessary for me to answer the point."

2. " If the landlord took possession of the premises, and used or occupied the same, either personally or by a second tenant, he will be estopped from collecting the rent for the same period of the former tenant, unless otherwise agreed between them."

Answer. " The phraseology there is a little ambiguous. ‘ If the landlord took possession of the premises.’ If that means that if the landlord accepted the surrender of the premises and agreed to release the tenant, the proposition is true; but the mere fact, as I have said to you, of the landlord's taking possession of the premises and renting them, after the other party had refused to remain upon them, does not produce the effect that is here asked for. If that is the meaning of the point, I refuse to affirm it."

The learned judge charged the jury, inter alia, as follows:--" The rule of law is perfectly well settled in this state, that a landlord is not liable for repairs unless there is a special stipulation to that effect in the lease. Any man has a right to take the premises of any other man if he pleases, making any covenant or agreement with the landlord that he pleases, but it is settled that h...