Clark v. Lindsay

• Decision Date: 19 February 1898
• Docket Number: 90-1897
• Citation: 7 Pa.Super. 43
• Parties: James Clark v. Daniel S. Lindsay, Appellant
• Court: Pennsylvania Superior Court

7 Pa.Super. 43

James Clark v. Daniel S. Lindsay, Appellant

No. 90-1897

Superior Court of Pennsylvania

February 19, 1898

Argued October 12, 1897

Appeal by defendant, from judgment of C. P. No. 3, Phila. Co.-1895 No. 908, on verdict for plaintiff.

Trespass. Before McMichael, J.

The facts sufficiently appear in the opinion of the court.

Verdict and judgment for plaintiff for $ 350. Defendant appealed.

Errors assigned among others were In affirming plaintiff's third and fifth points, which points are as follows: " 3. As the reservation in the lease as it is produced is in general and indefinite terms, and, being the language of the lessor must be taken most strongly against him; it must be construed so as to limit him to such reasonable alterations as would not interfere with the tenant's occupancy of the leased premises, and would not be inconsistent with his enjoyment of the estate thereby granted." " 5. That if the jury find for the plaintiff, they are entitled to consider the loss, annoyance and discomfort resulting to plaintiff and his family from being deprived of a large part of a house while the work in question was in progress, and from being obliged to occupy it in an unfinished condition afterwards, and any extra work imposed thereby upon them, and should allow the plaintiff reasonable compensation therefor." In answer to defendant's fourth point, which point and answer are as follows: " 4. The plaintiff having admitted he went into possession of the premises under a written lease from defendant, and that lease being admitted in evidence without objection, and the right to do the work which defendant did being reserved in said lease, and the plaintiff not alleging in his statement, fraud, accident or mistake in the execution of the lease, your verdict must be for defendant. Answer: I decline that point because I leave it as a question of fact for the jury." In refusing binding instructions for defendant.

Reversed.

Jos. E. Embery, with him John Eckstein Beatty, for appellant. -- There was no evidence as to wanton or reckless conduct in the prosecution of the alterations and repairs, and under the facts the verdict should have been directed for the defendant: Rineman v. Blair, 96 Pa. 155.

Jas. S. Williams, of Williams & Tatem, for appellee. -- The lease in this case grants to the plaintiff the use of a house for the term of one year. Can it be said with any show of reason that it was the intention of these parties that the landlord should have the right to make changes and alterations in the house to an unlimited extent whenever he should choose to enter for that purpose? To adopt that construction would make the reservation repugnant to the grant. A reservation which is as large as the grant is void, and the grant valid: Shoenberger v Lyon, 7 W. & S. 184; Taylor on Landlord and Tenant, 157 Wood on Landlord and Tenant, 429.

All authorities agree that the words of an exception or reservation in a lease are words of the lessor: Bullen v. Denning, 5 B. & C., 842.

" The grantor shall not take advantage of a difficulty which he has himself created:" 3 Washb. on Real Prop. 628.

Before Rice, P. J., Wickham, Beaver, Reeder, Smith and Porter, JJ. Opinion by Smith, J.

OPINION

SMITH, J.

The declaration in this case alleges that " the plaintiff was lessee of a farm owned by the defendant upon which there was a comfortable dwelling house," and that the defendant " by his servants and employees unlawfully took possession thereof, tore down partitions, defaced the walls, tore off a portion of the roof, and by various other means rendered the said premises uninhabitable, with comfort and safety, and prevented the plaintiff from having the use thereof," for a period of three months. The defendant alleged a right to do this under the following provision of the lease: " The lessor reserves the right to make any changes or alterations to the mansion house during the year." It was unquestioned that the defendant was engaged in making changes and alterations in the mansion house, within the meaning of this clause, and that this work caused the damage for which the present suit was brought. According to the evidence, the plaintiff claimed damages for (1) being deprived of the use of a part of the house for three months, and the inconvenience caused thereby; (2) dust blown about the house and on the furniture and clothing; (3) removing some of his household goods to another part of the house and to a barn on the premises, and afterward returning them; (4) washing and cleaning the house after the alterations were completed, and (5) removing the lumber and waste left by the carpenters. Under the charge, the jury were permitted to find for the plaintiff for each of these items, excepting, possibly, the first, although this is by no means clear.

The learned trial judge correctly charged the jury that the testimony was insufficient to impeach the writing; that the stipulations of the lease were binding on the parties; and, that the lessor had a right to make the changes and alterations to which objection was made. The further instruction that the simple question for the jury to determine was whether the lessor exercised his right to make the alterations in a reasonable way, would also be applicable, if that matter had been made a part of the issue tried, by testimony tending to show that the work was performed in a reckless or unreasonable manner, thus causing the injuries for which compensation is sought.

It was erroneous to affirm the plaintiff's third point, to the effect that the lease " must be construed so as to limit the lessor to such reasonable alterations as would not interfere with the tenant's occupancy of the leased premises, and would not be inconsistent with his enjoyment of the estate thereby granted." This was inconsistent with the construction already given to the writing, and practically, authorized the jury to disregard the written contract if in their judgment its enforcement would interfere with the tenant's occupancy or enjoyment of the premises. The reservation gave the lessor an unqualified right to make alterations, and to this right...