McClurg v. Price

• Decision Date: 04 January 1869
• Parties: McClurg <I>versus</I> Price & Sims.
• Court: Pennsylvania Supreme Court

59 Pa. 420

McClurg versus Price & Sims.

Supreme Court of Pennsylvania.

November 6, 1868.

January 4, 1869.

November 6th 1868.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., absent

Error to the District Court of Allegheny county: No. 56, to October and November Term 1868.

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G. Shiras, Jr., for plaintiff in error.—The plaintiff might recover for use and occupation, although there was a special contract: 1 Chitty's Pl. 343, n. 4; Egler v. Marsden, 5 Taunt. 25; Bird v. Wright, 1 Term Rep. 378; Mackey v. Robinson, 2 Jones 170; Pott v. Lesher, 1 Yeates 576; Henwood v. Cheeseman, 3 S. & R. 500; Brolasky v. Ferguson, 12 Wright 435; Clement v. Youngman, 4 Id. 342. To establish an eviction, entry by the tenant and expulsion must be proved: Bennet v. Bittle, 4 Rawle 339; Tiley v. Moyers, 7 Wright 404. The defendants waived their right arising from an eviction, if any, by holding over: Taylor on Landlord and Tenant 273-275; 1 Washburne on Real Property 352.

D. Reed, for defendants in error.—The statute 2 George 2, ch. 19, Roberts's Dig. 237, although sustaining an action for use and occupation, notwithstanding there may be a parol demise, will not allow a recovery where the terms of the contract have not been performed by the lessor. The contract was entire, and the lessor cannot take advantage of his own wrong and recover for part: 1 Washburne on Real Property 345; Martin v. Schoenberger, 8 W. & S. 368, 369; Harris v. Ligget, 1 Id. 306; Shaw v. The Turnpike Co., 2 Penna. R. 454. There may be a constructive eviction: Taylor on Landlord and Tenant, § 378 (and in note), 380; Shaw v. The Turnpike Co., 3 Penna. R. 446; Dyett v. Pendleton, 8 Cowen 731; Ogilvie v. Hull, 5 Hill 52; Edgerton v. Page, 6 Smith's N. Y. Rep. 284; Eldridge v. Knott, Cowper 214; Tiley v. Moyers, 7 Wright 410; Lewis v. Payn, 4 Wendell 423; Briggs v. Thompson, 9 Barr 339; 7 Bacon's Abridgment, tit. Rent, letter M.; Kessler v. McConachy, 1 Rawle 442; Linton v. Hart, 1 Casey 196; Reed v. Ward, 10 Harris 150; Vaughan v. Blanchard, 1 Yeates 176.

The opinion of the court was delivered, January 4th 1869, by WILLIAMS, J.

The plaintiff's retention of a part of the demised premises, and his refusal to deliver possession thereof to the defendants, on demand, in accordance with the terms of his verbal lease, did not constitute an eviction in law. It is doubtless true that there may be an eviction without an actual physical expulsion; but there can be no eviction, actual or constructive, without an antecedent possession. If this case turned on the question of eviction, the plaintiff might be entitled to recover rent for the portion of the premises actually enjoyed by the defendants. But it does not turn on this point. The evidence shows, and the jury have found, that the plaintiff leased his warehouse to the defendants, at an annual rent of $1500, payable quarterly; that at the making of the contract, he delivered to them possession of the three lower stories, and agreed to give them possession of the cellar and of the fourth and fifth stories, on demand; that he refused to deliver possession thereof, although repeatedly requested; and that the defendants were finally compelled, for want of room, to abandon the premises and to rent another house for the transaction of their business.

Notwithstanding the plaintiff's deliberate and persistent refusal to perform his contract, he claims the right to recover compensation for the use and occupation of the portion of the demised premises actually enjoyed by the defendants, on the ground that they had the right to treat his goods as they would those of a stranger, and to remove them at his expense. But if the right be conceded, it does not follow that the defendants were bound to exercise it to the exclusion of all other remedies which the law gave them for the redress of the plaintiff's breach of his contract, or that their failure to exercise it will prevent them from setting up any defence to his claim for rent which they might otherwise make. But the defendants had no right to remove the plaintiff's goods. The law gave them no such remedy for his refusal to perform his contract. The evidence not only shows that his goods were in the portion of the demised premises which he withheld from the defendants, but that he was in...