Federal Metal Bed Co. v. Alpha Sign Co.
| Decision Date | 11 April 1927 |
| Docket Number | 42 |
| Parties | Federal Metal Bed Co. v. Alpha Sign Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 16, 1927
Appeal, No. 42, March T., 1927, by defendant, from order of C.P. Allegheny Co., April T., 1926, No. 3149, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Federal Metal Bed Co. v. Alpha Sign Co. Affirmed.
Assumpsit for rent.
Rule for judgment for want of sufficient affidavit of defense. Before ROWAND, J.
The opinion of the Supreme Court states the facts.
Rule absolute. Defendant appealed.
Error assigned was order, quoting record.
The judgment is affirmed.
Joseph Stadtfeld, for appellant, cited: Wolfe v. Arrott, 109 Pa. 473; Sacks v. Schimmel, 3 Pa. Superior Ct. 426; Stewart v. Trimble, 15 Pa.Super. 513; Weixel v. Lennox, 179 Pa. 457; Smalley v Morris, 157 Pa. 349; Guffey v. Clever, 146 Pa. 548.
A. Leo Weil, Jr., of Weil, Christy & Weil, for appellee, cited Graham v. Hay, 81 Pa.Super. 594; Rockafellow v. Baker, 41 Pa. 319; Clark v. Everhart, 63 Pa. 347; Wood v. Carson, 257 Pa. 522; Jackman v. Enterprises Co., 256 Pa. 215; Spaulding v. Justice, 68 Pa.Super. 133.
Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART and SADLER, JJ.
This is an appeal from a judgment against defendant for want of a sufficient affidavit of defense.
The statement of claim avers that plaintiff entered into a written lease with defendant whereby it let to the latter "the roof and side walls of a certain building . . . for the erection and maintenance upon said roof and . . . side walls of signs and advertisements and of structures for displaying painted, electric and other advertisements." The lease was for a term of seven years commencing January 1, 1924, at an annual rental of $4,000, payable in equal monthly installments. Plaintiff claimed that defendant had paid no rent since July 31, 1925, and that it owed on that account $3,666.63, for which the suit was brought.
The affidavit of defense admitted the lease and an indebtedness thereunder of $1,333.33, asserting that there had been a failure of consideration amounting to the difference between the sum claimed by plaintiff and that admitted by defendant, and also that the lease "was obtained through fraudulent representations made by the Federal Factories Company, in the interest of and on behalf of the Federal Metal Bed Company, plaintiff."
Defendant admitted that it had used the side walls of the building in question and was still using them for advertising signs; it also admitted that it had erected and still maintained a small electrical sign on the roof, containing the name of defendant company. Defendant averred, however, that "it has [not] at any time maintained signs on the roof of said building for display purposes by its clients and customers, as provided for and contemplated under the terms of the lease"; that, "at the time of the execution of said lease [and also at the time of the sending out of a circular letter, to which we shall refer later on] said roof was not available for use of erecting and maintaining thereon any electrical sign or signs, in that said roof was so weak and defectively constructed . . . it could not carry or sustain the weight of an electrical sign such as contemplated and understood between plaintiff company and defendant company and provided for under the terms of said lease, and for which the space on said roof was leased to be used; and [that this condition] was . . . known and understood by plaintiff company."
The affidavit of defense further avers that the lease in question provides that lessee shall have the right to erect and maintain on the roof and sidewalls of plaintiff's building "structures and necessary equipment for the purpose of enabling it to display advertisements of its clients"; that "such structures and equipment shall comply in all respects with all regulations . . . and requirements of the City of Pittsburgh"; and that "the lessee shall at its own cost and expense comply with all [such] rules, orders . . . and regulations." It then avers that on "March 15, 1924, defendant company entered into a contract with one of its clients for the construction and maintenance of an electrical sign on the roof of said building"; that "the specifications for said sign were made to conform with the ordinances of the city . . . and . . . other regulations applying thereto"; and that the "bureau of building inspection, after an examination of said plans and specifications and an inspection of the roof of said building, declined and refused to grant a permit for the erection . . . of said sign . . . for the reason that said roof was so defectively constructed and in such impaired condition that it did not have sufficient support thereunder . . . and by reason thereof was so weak that it would not and could not sustain the weight of said proposed sign"; that, after the refusal of the permit, defendant notified plaintiff of such refusal and requested the latter "to make the necessary repairs and alterations so as to strengthen and make safe said roof and make the same available for the erection and maintenance of an electrical sign thereon," which plaintiff refused to do, and, in consequence of such refusal, defendant has "at no time been able to use said roof for the erection [or] maintenance of electrical signs for his clients, as provided for under the terms of said lease." All of which facts defendant contends, in its affidavit of defense, show a failure of consideration to the value of the privilege of using the roof for electric signs, which it alleges is "equal to at least fifty per cent of the total value of the advertising privileges granted under said lease."
The only averment as to an understanding between plaintiff and defendant concerning the character of signs to be erected, is the allegation in the affidavit of defense that, "Prior to and at the time of the execution of said lease, said roof was not available for use of erecting and maintaining thereon any electrical sign or signs, in that the roof was so weak and defectively constructed . . . that it could not carry or sustain the weight of an electrical sign, such as was contemplated and understood between plaintiff company and defendant company." This is entirely too vague, since it fails to state what weight or character of electric sign "was contemplated and understood" between the parties; and it does not follow, as the averment assumes, that, because the roof would not sustain the particular sign which defendant endeavored to place thereon, it was not available for "any electrical sign." As a matter of fact, the affidavit of defense itself shows that a sign of some description was erected on the roof by defendant and is still there. On a rule for judgment, "an affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would allow": Feather v. Hustead, 254 Pa. 357, 361, and cases there cited.
In disposing of the other points indicated by the affidavit, we call...
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