Frank v. Maguire

• Decision Date: 10 March 1862
• Citation: 42 Pa. 77
• Court: Pennsylvania Supreme Court
• Parties: Frank <I>versus</I> Maguire.

42 Pa. 77

Frank versus Maguire.

Supreme Court of Pennsylvania.

March 10, 1862.

ERROR to the Common Pleas of Philadelphia.

Edward H. Weil and Henry M. Phillips, for plaintiff in error. — The affidavit and supplemental affidavit show two distinct reasons for refusing judgment. 1. That the copy filed does not contain any specific cause of action, viz.: It does not state what amount, if any, is claimed. It does not suggest which, if any, of the covenants were broken. This action is brought against the security on the lease, not against the lessee himself. There was no suggestion attached to the copy that any rent was due, or the amount claimed by the plaintiff. The practice in the District Court for this county has always been to file a statement with the copy, and where this is not done that court refuses to enter judgment: Kearney v. Collins, 2 Miles 13. 2. The affidavits assert, with precision and certainty, that the plaintiff, during the pendency of the lease, received and accepted the keys of the premises, acknowledged De Grath & Co. as tenants in place of the lessee, Albright, and that De Grath & Co. attorned to the plaintiff. That this attornment took place immediately after the first quarter, the rent, up to that time, having been fully paid. Here, then, is a clear surrender: Greider's Appeal, 5 Barr 425; McKinney v. Reader, 7 Watts 124; Thomas v. Cook, 2 B. & A. 119; Smith v. Niver, 2 Barb. Sup. C. Rep. 180; Bailey v. Delaplaine, 1 Sandf. Sup. C. Rep. 5; Logan v. Anderson, 2 Doug. 101; Whitney v. Meyers, 1 Duer 266. A demise, such as the present, is an entire contract, and by an acceptance of a surrender, pending a current year, the landlord having destroyed his right to recover the entire rent of that year, according to the covenants of the lease, cannot recover any part of it, and is, therefore, not permitted to claim pro rata: Hall v. Burgess, 5 Barn. & Cress. 332 (11 E. C. L. R. 246); Grimman v. Legge, 8 Id. 324 (15 E. C. L. R. 229). This was an available defence for the lessee. It is not necessary to cite authorities here, that even if the acts of the lessor, the plaintiff below, did not bar his right of recovery against the tenant, Albright, still they unquestionably discharged the surety, who had no knowledge of such proceedings.

E. Coppée Mitchell and Simon Gratz, for defendant in error. — 1. The instrument, a copy of which is filed, is sufficient to meet the requirements of the affidavit of defence law. A lease is "an instrument of writing for the payment of money," within the meaning of statute of 28th March 1835: Dewey v. Dupuy, 2 W. & S. 553. No suggestion of the breach of any particular covenant contained in the instrument is necessary. For the only covenant contained in the instrument, which is "for the payment of money," is the one by which the lessee binds himself to pay rent. And if such covenant were not in the instrument, it would not come within the meaning of the act. Nor is any statement of the amount claimed necessary: Dewey v. Dupuy.

2. The affidavits of defence do not by a reasonable construction show a state of facts inconsistent with the liability of the plaintiff in error. They are ambiguous. The supplemental affidavit says, "that the plaintiff, after one quarter of one term of the lease had expired, accepted and received De Grath & Co. as tenants, &c." It might have been many months "after" the expiration of the quarter, or it might have been (as assumed in the plaintiff's argument) immediately after. It also states "that afterwards, during the pendency of the term of the lease, and a considerable time before its expiration, plaintiff" received the keys, without stating at what particular time. It might have been immediately after the attornment alleged in the affidavit, or it might have been (as was the truth of the matter) on the 24th or 25th of January 1861, after the suit was brought.

These defects were pointed out in the argument of the rule for judgment in the court below, and plaintiff in error had an opportunity of amending his affidavit; that he did not do so, puts the worst construction on these ambiguities: Bryar v. Harrison, 1 Wright 233.

The case of Dewey v. Dupuy, 2 W. & S. 553, is, in every particular, directly in point. See also Fisher v. Milliken, 8 Barr 111; Ghegan v. Young, 11 Harris 18.

The liability of the lessee being thus established, the covenant of Mr. Frank, who agreed to be responsible to the defendant in error, for the true and faithful performance of the covenants of the lessee, throws upon him the burden of paying the damages for their breach. For, even admitting, for the sake of argument (which is otherwise expressly denied), that the contract with the lessee was altered materially without the knowledge of Mr. Frank, the law forbids that the obligation of a contract under seal shall be varied, without resorting to the means of the same efficacy as those from which it is derived: Cordwent v. Hunt, 8 Taunt. 596; and, besides, there was no consideration.

The opinion of the court was delivered, March 10th 1862, by STRONG, J.

The judgment which we are asked to reverse was entered for want of a sufficient affidavit of defence, and the first question is, whether the...