Davis v. Pierce

• Decision Date: 27 February 1913
• Docket Number: 227-1912
• Citation: 52 Pa.Super. 615
• Parties: Davis v. Pierce, Appellant
• Court: Pennsylvania Superior Court

52 Pa.Super. 615

Davis v. Pierce, Appellant

No. 227-1912

Superior Court of Pennsylvania

February 27, 1913

Argued November 20, 1912

Appeal by defendant, from order of C.P. Chester Co., discharging rule to open judgment in case of Amos Davis v. Jennie L Pierce.

Rule to open judgment.

The opinion of the Superior Court states the facts.

Error assigned was order discharging rule to open judgment.

W. S Harris, for appellant, cited: Cleves v. Willoughby 7 Hill, 83; Wood v. Hubbell, 5 Barb. 601; Kaier v. O'Brien, 202 Pa. 153; Weber v. Roland, 39 Pa.Super. 611; Volk v. Shoemaker, 229 Pa. 407.

John N Guss and Thomas Lack, for appellee.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

OPINION

RICE, J.

This is an appeal from the court's refusal to open a judgment entered by virtue of a confession contained in a lease of a stable. The lease was executed on March 11, 1912, and was for the term of one year from April 1, 1912. The rent was payable quarterly in advance.

One ground upon which the defendant asked to have the judgment opened was that when she signed the lease she did not know that it contained a confession of judgment. But it is apparent, from the testimony, that, if she did not know it, it was because she did not read the lease, not because she did not have opportunity to read it, or was induced not to do so by any misrepresentation of its contents by the plaintiff or other declaration or conduct of his. There can be no plainer case for the application of the familiar principle enunciated by Chief Justice Gibson in Greenfield's Est., 14 Pa. 489, 496, that if a party who can read, as the defendant could, will not read a deed put before him for execution, he is guilty of supine negligence, which is not the subject of protection, either in equity or at law.

As another ground for defense, the defendant alleged, in her petition, that she did not take possession under the lease because the unsanitary condition of the stable would have made it dangerous to her horses to put them in it, that she did not know of this fact at the time she executed the lease and that when she learned it she immediately notified the plaintiff of it, and he promised to remedy the dangerous condition of the stable, but did not do so. With regard to this branch of the defense it is to be noticed that there is no evidence that the plaintiff misrepresented the condition of the stable, and no such clear and satisfactory evidence of his fraudulent concealment of facts as made it the imperative duty of the court to open the judgment on that ground. Moreover, at the time of the execution of the lease the defendant was in the actual occupancy of the stable and had been for three months before, and, therefore, was in the same position as the plaintiff to see what its condition was. There is peculiar reason, therefore, for applying the general rule that " in the absence of an express agreement there is no implied obligation on the landlord to repair demised premises, nor does he impliedly undertake that they are fit for the purposes for which they are rented -- that they are tenantable or shall continue so. If they burn down he is not bound to rebuild. The rule here, as in other cases, is caveat emptor. The lessee's eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants, to repair and rebuild:" Sharswood, J., in Moore v. Weber, 71 Pa. 429; Hazlett v. Powell, 30 Pa. 293, 298; Wheeler v. Crawford, 86 Pa. 327; Jackson and Gross on Landlord and Tenant, 512 and 513; 24 Cyc. of Law & Pro. 1155. But it is argued that the covenant upon the part of the lessee " that she will keep the said premises in a clean and sanitary condition," was, in effect, a representation upon the part of the lessor that the stable was in clean and sanitary condition. It is true, Justice Mercur said in Wolfe v. Arrott, 109 Pa. 473, that the stipulation in the lease then under consideration, that...