Chelten Avenue Building Corp. v. Mayer

• Decision Date: 21 May 1934
• Docket Number: 218
• Citation: 172 A. 675,316 Pa. 228
• Parties: Chelten Avenue Building Corporation v. Mayer, Appellant
• Court: Pennsylvania Supreme Court

172 A. 675

316 Pa. 228

Chelten Avenue Building Corporation v. Mayer, Appellant

No. 218

Supreme Court of Pennsylvania

May 21, 1934

Argued April 24, 1934

Appeal, No. 218, Jan. T., 1934, by defendant, from judgment of C.P. No. 2, Phila. Co., Dec. T., 1930, No. 2771, in case of Chelten Avenue Building Corporation v. Margaret B. Mayer. Judgment affirmed.

Assumpsit on written lease. Before STERN, P.J.

The opinion of the Supreme Court states the facts.

Verdict directed for plaintiff and judgment entered thereon. Defendant appealed.

Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.

Judgment affirmed.

W Horace Hepburn, Jr., for appellant.

Walter Lee Sheppard, with him Alexander M. DeHaven, for appellee.

Before FRAZER, C.J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

This is an action of assumpsit by the plaintiff corporation for the recovery of rent alleged to be due under a written lease. At the trial, binding instructions were granted for the plaintiff and a verdict rendered against the defendant. After the refusal of the court below to enter judgment n.o.v. in favor of the defendant or grant a new trial, defendant appealed.

Plaintiff owns and operates a cooperative apartment house, tenancy in which is restricted to persons owning stock in the plaintiff corporation. On June 11, 1926, the defendant purchased sixty-five shares of stock and entered into a written lease for the occupancy of an apartment in the building. The lease ran for an indefinite period of time, and under its terms the rent was to be fixed by the board of directors according to the amount of carrying charges on the property, which were apportioned equally among the tenants. The defendant became dissatisfied with life in that apartment, and so told the president of the plaintiff corporation, and informed him that she would give him "five hundred dollars for the selling of the place." She personally made a number of efforts to sell the apartment, and finally posted a sign "For Rent or Sale" in the window, against the protest of the management and in direct violation of the terms of her lease, which provided that "none of the rooms shall be offered for rent by placing notices on any door, window or wall of the building, or of the demised premises."

Her conduct so aggrieved plaintiff that on January 19, 1929, it charged her with a breach of the lease and entered judgment in ejectment by confession against her. The defendant opposed this action, had the judgment opened by the court, and on October 24, 1930, obtained a verdict in her favor. She continued to live in the apartment until the middle of May, 1930, a period of approximately sixteen months from the time of the entry of the judgment in ejectment, and remained in actual possession by keeping her furniture there until long after the commencement of this action on December 12, 1930. She paid no rent for this whole time. At the trial plaintiff limited its claim to the period ending May 1, 1930, two weeks before the time when she ceased to live in the apartment. The learned trial judge directed a verdict for the amount of rent accrued and unpaid up to May 1, 1930, and allowed an exception to the defendant.

Defendant attempts to maintain her appeal on two grounds: (1) That the institution of the ejectment action terminated the lease and prevented plaintiff from maintaining an action thereon, and (2) that the acts and conduct of plaintiff's agents and servants constituted an eviction and suspended her obligation to pay rent.

As to the first contention, the learned counsel for defendant concedes that there is no direct ruling in Pennsylvania on the question whether the institution of an action of ejectment against a tenant by his landlord terminates the lease. However, he cites in support of his position two English cases, Jones v. Carter, 15 M. & W. 718, and Serjeant v. Nash, Field & Co., [1903] 2 K.B. 304. An examination of these cases discloses that they are not applicable to the present situation. The Jones case holds that the commencement by a landlord of an action for the recovery of possession of the demised premises, on the ground of breach of covenant by the tenant, operates as a final election to terminate the lease, and, during the pendency of the action, bars the recovery of rent accruing after its commencement. The Serjeant case holds that the same result follows as between a tenant and his subtenant where the head landlord has instituted such an action. Those cases do not hold that where the tenant has resisted the action of the landlord to put him out of possession, and has had judgment entered in his favor, he can then successfully contend that the lease was terminated by the institution of the action. It is only common sense that where the tenant has...