Hochman v. Kuebler

• Decision Date: 29 April 1913
• Docket Number: 91-1912
• Citation: 53 Pa.Super. 481
• Parties: Hochman, Appellant, v. Kuebler
• Court: Pennsylvania Superior Court

53 Pa.Super. 481

Hochman, Appellant, v. Kuebler

No. 91-1912

Superior Court of Pennsylvania

April 29, 1913

Argued December 3, 1912 [Syllabus Matter]

Appeal plaintiff, from judgment of C.P. Northampton Co.-1911, No. 8 on verdict for plaintiff in case of Isaac B. Hochman v William J. Kuebler et al., trading as W. Kuebler's Sons.

Assumpsit for rent. Before Staples, P. J., specially presiding.

At the trial it appeared that on November 24, 1909, Joseph A. Buettner leased a property in Easton to A. J. Ulmer for a term of three years. W. Kuebler Sons, the defendants, became sureties for the rent. On December 24, 1910, the plaintiff, Isaac B. Hochman, purchased the premises from Buettner. The plaintiff found that the premises, which had been a licensed saloon, had been vacated by Ulmer after he had lost his license. The evidence showed that the plaintiff went to a person named Gies who had the keys, and took possession of them and also went to Ulmer and asked him for the lease or a copy of it. There was also evidence that plaintiff had negotiated with one A. O. Shiery to rent the premises, if the latter should secure a license. The license was not obtained, however, by Shiery, and the negotiations fell through. It also appeared that plaintiff had made some improvements and repairs to the property. Subsequently Hochman succeeded in procuring another tenant. Suit was brought against the sureties of Ulmer to recover rent from January 1, 1911, when it was last paid to May 1, 1911, when the new tenant had been obtained.

The court charged in part as follows:

[The plaintiff in this case stands in the shoes of the original lessor of real estate and a landlord, or the lessor of real estate who takes the property back, accepts the possession of it, and whether delivered to him actually or whether delivered to him symbolically, or in a way which is equivalent to an actual delivery can no longer collect any rent for the premises in question, and we say to you, that if Mr. Hochman, the plaintiff in this case, by his acts took this property back that he has no right to his claim for rent.]

[Did Kuebler have the right to surrender the possession of that property? He was the surety. Now what is there in the case which would warrant you in the conclusion that he had the right to give it up? In the light of all the evidence in the case, we say we do not remember that he had such complete possession of the property as would have given him the right to surrender it. He could as surety say what he did, but in the opinion of the court he had not the full power to surrender the premises.]

[Now we say to you that if he went to Ulmer and asked him for the lease with the idea of taking possession of the premises, and that he took the lease from Ulmer in that way, that notwithstanding the fact that he was in bankruptcy, there being no evidence that the trustee in bankruptcy had made any effort to take possession of these premises, if he took that lease from Ulmer with the idea of taking possession of the premises, then we say to you that it was such an acceptance or taking back of the property as would prohibit him from collecting any part of this rent.]

[You will notice, gentlemen, that the term of this lease ran for three years. Now if he didn't take this property back in January as claimed by the defendant in this case, then what right had he to lease it at all in January, even though the term of the lease was not to commence until April 1, because if he did not accept the return of the lease, and if he didn't take possession of the property and consider it as his, and the lease canceled, then what right had he to lease or take possession of it at all?

We say to you that that is an important fact to be considered in the case. He could not blow hot and cold. He either took possession of that property entirely, or he didn't take possession of it at all, and if he didn't take possession of it at all, what right had he to lease it from April 1, 1911?]

Verdict and judgment for defendants. Plaintiff appealed.

Errors assigned were above instructions, quoting them.

Reversed.

C. F. Smith, of Smith, Paff & Laub, for appellant. -- After abandonment by tenant during term efforts of the landlord to rent the premises are not evidence of acceptance of surrender of term, nor are repairs such evidence: Reeves v. McComeskey, 168 Pa. 571; Auer v. Penn, 99 Pa. 370; Breuckmann v. Twibill, 89 Pa. 58; Lipper v. Bouve, 6 Pa.Super. 452; Snyder v. Henry, 32 Pa.Super. 167; Smucker v. Grinberg, 27 Pa.Super. 531; Pier v. Carr, 69 Pa. 326; Lane v. Nelson, 167 Pa. 602.

Parke H. Davis, for appellee.

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

OPINION

HEAD, J.

When the defendant voluntarily abandoned the demised premises during the term, as he himself declares he did, he of course did not relieve himself or his sureties from the obligation to perform the covenant to pay rent. That liability could be discharged only by the act of the landlord, either in accepting a surrender of the lease or doing some act which had the legal effect of an eviction. The present action was for the recovery of rent reserved in the lease. The defendants, the sureties of the tenant, make defense on both of the grounds indicated.

It has uniformly been held that where a tenant, during the term abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that he resumes possession is not of itself a sufficient foundation upon which to predicate either an acceptance of a surrender or an eviction. It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to a reoccupation of it by him and a renewal of the relations created by the lease. So too, if during the period of abandonment the landlord should make some repairs of the demised premises, or even sublet to another, ...