Cleveland v. Salwen

• Decision Date: 12 March 1928
• Docket Number: 56
• Citation: 141 A. 155,292 Pa. 427
• Parties: Cleveland et al., Appellants, v. Salwen et al
• Court: Pennsylvania Supreme Court

141 A. 155

292 Pa. 427

Cleveland et al., Appellants, v. Salwen et al

No. 56

Supreme Court of Pennsylvania

March 12, 1928

Argued January 23, 1928

Appeal, No. 56, Jan. T., 1928, by plaintiffs, from order of C.P. Lackawanna Co., May T., 1925, No. 488, dismissing exceptions to report of referee, in case of George W Cleveland et al. v. Isaac Salwen et al. Affirmed.

Rule to open judgment.

The opinion of the Supreme Court states the facts.

Issue framed and submitted to referee. Exceptions to referee's report in favor of defendants dismissed in opinion by NEWCOMB, P.J. Plaintiffs appealed.

Error assigned, inter alia, was order dismissing exceptions to referee's report, quoting record.

The assignments of error are overruled and the judgment of the court below is affirmed.

A. A Vosburg, with him H. W. Mumford, for appellants. -- The cutting through of a doorway in the partition wall between the Cleveland property and the Kaufman property, constituted waste; and the commission of waste by a tenant, on the demised premises, is, of course, ground for a forfeiture of the lease: Smith v. Chappell, 25 Pa.Super. 81; Lewis v. Jones, 17 Pa. 262; Jones v. Whitehead, 2 Pars. 304; Earle v. Arbogast, 180 Pa. 409.

It is well settled that for a breach in the covenants of a lease, and under the provision for the entry of a judgment in ejectment in such case, under a provision such as appears in the lease in the instant case, the entry of such judgment will be sustained: Pa. Co. v. Shanahan, 10 Pa.Super. 267; Scherr v. Seymour, 2 W.N.C. 534; Gibson v. Better, 162 Pa. 26; Ellis v. Ambler, 11 Pa.Super. 406; Singer v. Sheriff, 28 Pa.Super. 305.

Leon M. Levy, with him R. L. Levy, for appellees. -- Lessor had no right to terminate or forfeit a lease for alleged breach thereof after having accepted rent and otherwise ratified the lease for several years after knowledge of the alleged breach: Newman v. Rutter, 8 Watts 51; Swartz v. Bixler, 261 Pa. 282; Beatty v. Masavage, 15 Pa. Dist. R. 974; Thomas v. Boyle, 265 Pa. 487.

Lessor has no right to allege as a breach of lease, the action of a tenant which took place not within the period of the lease, but several months before the beginning of the term of tenancy.

Lessor had no right to forfeit a lease without first notifying the tenant that the course of dealing established between them must be changed, and performance insisted upon of the exact conditions of the lease: Cogley v. Brown, 15 Phila. 162; Norton v. Kramer, 5 Lack. Jur. 86; Beatty v. Masavage, 15 Pa. Dist. R. 975.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Appellants, owners of a store building in the city of Scranton, leased the property to defendants for a term of five years ending March 21, 1925, at a monthly rental of $80, payable in advance, with a renewal clause for an additional term of five years, at a monthly rental of $85. Defendants conducted a business both in this structure and in adjoining premises, known as the Kaufman Building, not owned by plaintiffs. For the purpose of facilitating their commercial operations, lessees desired to connect the two buildings by a doorway through the wall between the two structures. Permission to make the opening was given by the owners of the Kaufman building, and in the lease of the property of plaintiffs, appellants here, was incorporated a covenant as follows: "Should tenants cut doors into adjoining building they will put up a bond for $500.00 conditioned to restore premises to present condition." The opening through the wall was subsequently made and used by lessees. Shortly before the expiration of the five-year term, lessees notified lessors of their intention to renew the lease, under the renewal clause, for an additional five years, and agreeing to pay the increased rent. For answer they received from lessors a notification that renewal would not be granted, for the reason lessees had violated the terms of the lease, "in that you have failed to pay the water rent over $4.00 per quarter, and in other respects." The nature of the alleged breach "in other respects" was not specified. The tenants refused to vacate at the end of the term, and a judgment in ejectment was entered under the provisions of the lease. Subsequent to entry of the judgment and months after the expiration of the original term of five years, appellants, by leave of court, alleged additional causes for forfeiture, to the effect that lessees had neither paid the rent in advance nor furnished bond for $500 required by the lease in connection with the opening of the doorway between the stores. A rule by defendants to open the judgment was made absolute, and the matter submitted to a referee, who reported in favor of defendants; the court below confirmed the report, and, from the order entered, this appeal is taken.

We can dispose of two of the alleged reasons for the forfeiture of the lease as presented by appellants, -- failure to pay rent in advance and nonpayment of water rent, -- by forthwith discarding them as furnishing no grounds upon which to base the forfeiture. In fact, they were so disposed of by appellants themselves, when at the hearing before the referee they formally abandoned the claim as to water rent and also wholly undermined the alleged breach of the lease as to nonpayment of rent in advance by their repeated admissions that the rent was regularly accepted by lessors. We accordingly concur in the following finding of the referee confirmed by the court below: "Under the...