Johnstown Millwork & Lumber Co. v. Varner

• Decision Date: 05 March 1935
• Docket Number: 150-1935
• Citation: 117 Pa.Super. 374,177 A. 325
• Parties: Johnstown Millwork and Lumber Company, Appellant, v. Varner
• Court: Pennsylvania Superior Court

177 A. 325

117 Pa.Super. 374

Johnstown Millwork and Lumber Company, Appellant, v. Varner

No. 150-1935

Superior Court of Pennsylvania

March 5, 1935

Argued October 29, 1934

Appeal by plaintiff from decree of C. P., Cambria County, September T., 1933, No. 177, in the case of Johnstown Millwork and Lumber Company v. Walter D. Varner.

Petition and rule to open judgment.

The facts are stated in the opinion of the Superior Court.

Rule to open judgment made absolute, in opinion by McCann, P. J Plaintiff appealed.

Error assigned, among others, was decree making rule absolute.

Judgment reversed and petition dismissed.

Russell R. Yost, of Graham, Yost & Meyers, for appellant.

Friedjoff D. Tappert, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld Parker and James, JJ.

OPINION

James, J.

On January 1, 1932, the Johnstown Millwork & Lumber Company leased to Walter D. Varner certain premises in the City of Johnstown on which were erected an office building, mill and dry-kiln, lumber sheds and a garage. On June 22, 1933, by virtue of the power of attorney authorizing confession of judgment, judgment was entered for the sum of $ 73.33, balance of rent for the months of March, April and May of 1933. On defendant's petition to open the judgment, a rule was granted which plaintiff moved to dismiss for the reason that the petition did not contain any averments which would entitle the defendant to have the judgment opened. On August 6, 1934, defendant's rule to open was made absolute, from which order this appeal is taken.

No answer having been filed, we must assume that the averments of the petition are true, from which petition the following facts may be gathered: The plaintiff a corporation, was organized in 1905, and conducted a wholesale and retail lumber business and operated a lumber yard and planing mill on the premises described in the lease. Two-thirds of the stock of the corporation was and is still owned by Lemon L. Smith one-third by Walter D. Varner, the lessee herein. On December 21, 1922, the plaintiff corporation transferred all the buildings, machinery and other assets of the corporation, except the real estate, to Lemon L. Smith and Walter D. Varner and leased to them the real estate. Thereafter, the lumber business was conducted by Smith and Varner, as co-partners, under the name of Smith & Varner until January 1, 1932, when the partnership was dissolved; the defendant purchased outright the stock, furniture, fixtures and autos, and the defendant entered into a lease with the plaintiff corporation for the premises, at which time the machinery, buildings and plant were in a bad state of repair. The lease was for a period of one year with the privilege of renewal from year to year not exceeding fifteen years. Before and at the time of the execution of the lease, it was understood between the president of the plaintiff corporation and defendant that the latter would not replace, rebuild, restore or repair, at his expense, any machinery, equipment or buildings which were worn out in the course of the ordinary operations of the plant and machinery formerly used by the plaintiff corporation and the partnership, and that the defendant agreed only to do ordinary repairs and keep the premises in repairs so as to maintain them in same condition at which they were at the time of the execution of the lease, reasonable use and wear and damage and destruction by fire or act of God excepted. The defendant conducted the lumber business on the premises mentioned in the lease. On or about the 25th day of January, 1933, the moulder machine in the lumber mill broke down completely from ordinary use and wear and it was necessary to put the machine in order. Without notifying the lessor ...