Jackman v. Harry Davis Enterprises Co.

• Decision Date: 08 January 1917
• Docket Number: 114,115,113
• Parties: Jackman v. Harry Davis Enterprises Company, Appellant
• Court: Pennsylvania Supreme Court

100 A. 801

256 Pa. 215

Jackman v. Harry Davis Enterprises Company, Appellant

Nos. 113, 114, 115

Supreme Court of Pennsylvania

January 8, 1917

[Copyrighted Material Omitted]

Argued October 12, 1916

Appeals, Nos. 113, 114 and 115, Oct. T., 1916, by defendant from judgment of C.P. Allegheny Co., July T., 1914, Nos. 2142 and 2515; Oct. T., 1914, No. 1436, for plaintiff, on submission to the court without a jury, in cases of Edward F. Jackman v. Harry Davis Enterprises Company. Affirmed.

Assumpsit for rent and breach of a covenant in a lease requiring defendant to restore the premises in the same condition in which they were received.

SHAFER, P.J., filed the following findings of fact and conclusions of law:

These three cases were tried together, the two of July Term having been tried for two days before a jury when it was agreed by counsel that all three of the cases should be tried without a jury and the evidence taken before the jury used in all three of them as if taken in each. They are actions of assumpsit, each for a month's rent, the third case being also for breach of a covenant in the lease requiring the defendant to restore the premises in the same condition in which they were received, together with the personal property thereon.

FINDINGS OF FACT.

1. In 1890 the plaintiff was the owner of a building on Penn avenue, City of Pittsburgh, used for a stable, which had been erected some five or six years before, the front of it having been built with the intention of at some time changing it to a theater. In that year plaintiff had plans drawn for a theater. According to these plans the front was left standing and about fifteen feet of the sidewall at each end next to the street. All the rest of the building was removed, foundations and all. There were used in the reconstruction some of the bricks of the walls torn down, and the iron girders which had supported the upper stories and roof of the stable.

2. On the east side of the building stood a three-story house, the wall of which was on the line between the lots, this wall having been erected before 1885 when the stable was built. The east wall of the theater, except the fifteen feet at the front which was not taken down, was built against the wall of the adjoining house upon a foundation thirty-odd inches in thickness on a cement footing. The new wall was joined to the old fifteen feet from the street by steel anchors, there being a chimney in the old wall at this place. In joining these two walls no attempt was made to dovetail the bricks or make the wall so that in case the other house should be torn down the seam between the two walls would be covered up in any way. In building the new part of the east wall it was necessary in certain places to vary the thickness of the wall by reason of the wall of the adjoining house somewhat overhanging the line and no attempt was made by the bricklayers to make the wall even where it came against the old wall. In one place, apparently by reason of a window sill or other projection on the other wall, the outside bricks against the old wall were set on their edge instead of on their side, and in general no attention was paid to what would be the appearance of the outside of this wall in case the other wall were taken down. This wall was supported at the front of the stage by a transverse wall or proscenium arch, the wall being some three feet thick, and iron trusses were laid from the east to the west wall and on these the roof was supported.

3. The plans of this building were drawn by competent architects, and the work on it let out to various contractors and the work examined occasionally by an architect employed by the plaintiff. The plaintiff himself was almost every day on the ground while the work was going on. He had no special knowledge of building operations and knew nothing of any defects in the building of the east wall, if there were any.

4. After the completion of the theater it was used for that purpose by a lessee; and in 1902, or about that time, a water tank to contain ten thousand gallons was put up at the rear corner of the building, on the east side, a part of it supported by the rear wall and part by the east wall, this tank being used to feed a sprinkler system installed in the theater.

5. At the end of the theatrical season of 1909, the plaintiff's lessees were in default in payment of rent and he gave them notice to leave for such nonpayment. Anticipating their doing so, he had plans prepared for the renovation of the theater, which included changing of the balconies, or at least of the stairs to the balconies, and of the seats and the arrangement of the lobby, the principal object of the changes being to increase the safety of the building as a place of public amusement, public attention having been called to that matter recently by a disastrous fire in Chicago.

6. His lessees having given up possession about the middle of July, the plaintiff on the next or following day let contracts to various persons for the making of the changes designed and work was begun on them at once.

7. It having become known that the former lessees had given up the theater, which was known as the Duquesne Theater, one William M. Cooper, a real estate agent, but not in the employ of either of the parties, spoke to the plaintiff about renting the theater and suggested a lease to Mr. Harry Davis. The plaintiff said he would not lease to Mr. Davis, but when called on again and informed that the proposed lessee was the Harry Davis Enterprises Company, a corporation, he agreed to take up the matter of leasing to that company. Thereupon Cooper and Davis came to the theater on several occasions, it being then in the hands of a large number of workmen, and saw what could be seen in that way, and negotiations were so carried on that an oral agreement for the lease of the theater to the present defendant was made sometime in July, 1909.

8. It is alleged by the defendant and denied by the plaintiff, during these negotiations that certain representations were made to the defendant by the plaintiff in regard to the theater. These representations are set out in the affidavit of defense by stating that in answer to inquiries of the plaintiff "as to the condition of the building and its suitability for theater purposes," the plaintiff stated, "that said theater had been made suitable in all respects for theatrical purposes and had been put in a thorough state of repair, and that said defendant could procure a license to operate the same," and that, relying upon such representations the lease was signed. In a supplemental affidavit of defense filed in the first two cases, it is alleged that plaintiff told defendant that the theater was and would be in all respects and conditions in proper shape for use as a theater and that the defendant could procure the necessary license to operate it, and that he was making extensive alterations and improvements to it, and that it would be in proper state of equipment and repair in every respect, and that thereupon, without making any examination of the structure, the defendant signed the lease. The statement of plaintiff, as testified to by Mr. Davis, is "I am putting this building in perfect condition, safe in every way, and will remodel it after the Maxine Elliott theater on Thirty-ninth street in New York; it will be one of the finest theaters in Pittsburgh, both in safety and contour and in every other way." As testified to by Mr. Cooper, called by the defendant, who claimed to be present at the making of the statement, it was, "He was completely overhauling the building, remodeling it and refurnishing it, doing everything that was necessary to make it strictly safe and first-class as a place for amusement"; adding that he would not allow any prospective agent or tenant to interfere with the improvements he was making. The plaintiff denies ever having had any such conversation, or in fact any conversation on the subject, with Mr. Davis at any time. The testimony of these witnesses is of conversations supposed to have taken place over six years ago. In view of the defendant's omission from the affidavit of defense of any allegation as to statements made to it by the plaintiff in regard to the safety of the building, we are unable to find by the weight of the evidence that any such statement was in fact made, and therefore find that the plaintiff did not, before the making of the lease represent to the defendant that the building was safe. Besides this, if the word "safe" was used by the parties it was understood by them to refer to what is ordinarily meant by the safety of a theater, that is, the facility provided for getting the audience out in case of an alarm. The matter of the strength of the walls of the building or the strength of any part of the building was not discussed between the parties at all.

9. In the latter part of August a written lease, a copy of which is annexed to the plaintiff's affidavit of claim, was...