James v. Kurtz

• Decision Date: 05 October 1903
• Docket Number: 18-1903
• Citation: 23 Pa.Super. 304
• Parties: James v. Kurtz, Appellant
• Court: Pennsylvania Superior Court

23 Pa.Super. 304

James v. Kurtz, Appellant

No. 18-1903

Superior Court of Pennsylvania

October 5, 1903

Argued May 4, 1903

Appeal by defendant, from judgment of C.P. Cambria Co.-1901, No 361, overruling demurrer in case of David E. James, Agent of Enoch James and David E. James, Executors of Ebenezer James Deceased, v. Margaret Kurtz, Administrator of George Kurtz Deceased, and Adam Kurtz.

Appeal from justice of the peace.

The material averments of the statement of claim are set forth in the opinion of the Superior Court.

Error assigned was in overruling demurrer to statement.

Reversed.

Percy Allen Rose, with him Forest Rose and W. Horace Rose, for appellant. -- Adam Kurtz, the one defendant, not being a party to the contract, is not liable thereunder: Jackson & Gross on Landlord and Tenant (2d ed.), sec. 29, p. 23.

If the estate of George Kurtz, deceased, is jointly liable with Adam Kurtz for the rent in controversy, then the administratrix of George Kurtz, deceased, is improperly joined with Adam Kurtz in his individual capacity in the same suit: Hoskinson v. Eliot, 62 Pa. 393; Githers et al. v. Clarke et al., 158 Pa. 616.

William Williams, for appellee.

Before Rice, P. J., Beaver, Orlady, W. D. Porter, Morrison and Henderson, JJ.

OPINION

MORRISON, J.

This case was commenced before a justice of the peace and came into the common pleas of Cambria county on appeal by defendants. Plaintiffs having filed a declaration in the common pleas court it was demurred to by the defendants, and upon argument the court overruled the demurrer and granted judgment against the defendants, jointly, for the sum of $ 60.00 with interest and costs, from which judgment the defendants appealed and assigned the following errors: (1) The court erred in overruling the demurrer. (2) The court erred in entering judgment for the plaintiff on the demurrer. (3) The court having overruled the demurrer erred in not entering judgment of respondeat ouster. From the plaintiff's declaration we gather the following facts: On October 28, 1890, Ebenezer James leased unto George Kurtz for a term of five years from November 1, 1890, certain premises in the city of Johnstown, county of Cambria, being the property of said Ebenezer James. The annual rental reserved was $ 240, payable monthly in advance at the rate of $ 20.00 per month. This lease was in writing and signed by Ebenezer James and George Kurtz. On December 4, 1890, Ebenezer James received from George Kurtz the sum of $ 940, in full of all claims and demands under said lease until the expiration of the same, to wit: November 1, 1895; that on or about October 9, 1895, said Ebenezer James and George Kurtz agreed in writing to a continuation of said lease for one year or until November 1, 1896. A copy of the original lease, the receipt for $ 940, and of the agreement of October 9, 1895, is attached and made part of the plaintiff's declaration.

That said Ebenezer James performed his obligation under said lease, and the said George Kurtz and Adam Kurtz entered into the possession of said premises according to the terms of said agreement; that George Kurtz died on July 15, 1899, and Margaretta Kurtz was appointed administratrix of his estate; that said Ebenezer James died on November 15, 1896, having first made his last will and testament, which was duly proved, wherein Enoch James and David E. James were appointed executors of his estate, and David E. James was appointed to collect the rents for the real estate of the said Ebenezer James until the same is sold or disposed of; that the said real estate has not yet been disposed of; that the said George Kurtz and Adam Kurtz continued to hold and occupy said premises, without any other or further agreement than these herein mentioned (and copies of which are to the declaration attached), until the death of the said George Kurtz, and after his death the said Adam Kurtz, without any other or further agreement continued to occupy and retain possession of said premises until November 5, 1900; that the said Adam Kurtz paid the rent for said premises according to said agreement from the time of the death of George Kurtz until August 1, 1900; that said defendants, meaning Margaretta Kurtz, administratrix of George Kurtz, deceased, and Adam Kurtz, have neglected and refused to pay the rent for the months of August, September and October, 1900. It is then averred that the defendants are indebted jointly to the plaintiffs in the sum of $ 60.00, being the rent for said premises for August, September and October, 1900, at $ 20.00 per month.

It will be observed that the original lease is between Ebenezer James and George Kurtz, both of whom were dead before this suit was commenced. Adam Kurtz was not a party to this lease. Neither did Adam Kurtz have anything to do with the payment of the $ 940, paid on December 4, 1890, nor is Adam Kurtz a party to the writing of October 9, 1895, between Ebenezer James and George Kurtz continuing the original lease from November 1 1895, until November 1, 1896. It appears that George Kurtz continued to hold and occupy the premises from November 1, 1896, until his death on July 15, 1899, without any new contract. It also appears that after his death, Adam Kurtz, without any contract or agreement ever having been made by him with Ebenezer James, or with anyone for him, continued to occupy and retain possession of said...