Prescott v. Otterstatter

• Decision Date: 07 January 1878
• Parties: Prescott <I>versus</I> Otterstatter.
• Court: Pennsylvania Supreme Court

85 Pa. 534

Prescott versus Otterstatter.

Supreme Court of Pennsylvania.

November 19, 1877.

January 7, 1878.

November 19th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, Nos. 116, 117, 118, 119, 120, 121, 122 and 123.

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J. B. Brawley, for plaintiff in error.—The contract was an entire contract: McClurg v. Price & Sims, 9 P. F. Smith 420; Leishman v. White, 1 Allen 489; Shumway v. Collins, 6 Gray 232; 1 Wash. on Real Property 345. If an entire contract, defendant below was not entitled to recover any rent, unless complete performance has been prevented or waived by plaintiff below: McClurg v. Price & Sims, 9 P. F. Smith 420; Shaw v. Turnpike Company, 2 P. & W. 454; Harris v. Ligget, 1 W. & S. 301; Martin v. Schoenberger, 8 Id. 367; Leishman v. White et al., 1 Allen 489; Shumway v. Collins, 6 Gray 232.

The work was defectively done, and this was in law no performance: Miller v. Phillips, 7 Casey 223. The plaintiff paid the fees for certain witnesses. Defendant's fees for the same witnesses should not have been included in defendant's bill of costs: Batdorff v. Eckert, 3 Barr 268; Curtis v. Buzzard, 15 S & R. 22; Horner v. Harrington, 6 Watts 336. While under the strict letter of the Act of March 21st 1872, defendant was entitled to double costs, yet, under the true spirit and meaning of that act he would not be entitled to them; but if entitled, he can only claim for expenses actually incurred, and not for fees not paid and for which he was not liable: Musser v. Good, 11 S. & R. 248.

Pearson Church and W. R. Bole, for defendants in error.—The questions raised in these cases were all ruled and settled in Prescott v. Otterstatter, 29 P. F. Smith 462. As to costs, the Act of March 21st 1772, sect. 10, 1 Sm. Laws 372, 2 Purd. Dig. 1265, is plain and was followed by the court. After providing that the defendant in a replevin may aver for rent in arrear and make conusance generally, &c., it then provides "and if the plaintiff or plaintiffs in such action shall become nonsuit, discontinue his, her, or their action, or have judgment given against him, her, or them, the defendant or defendants in such replevin, shall recover double costs of suit."

Mr. Justice STERRETT delivered the opinion of the court, January 7th 1878.

The first six assignments of error refer to the instructions given in the general charge, and in answer to points submitted in relation to the right of the landlord to recover rent without having completed the improvements he covenanted to make, according to the terms of the lease. It is unnecessary to consider them seriatim. Taking some of them singly and alone, they might perhaps be sustained, but when considered in connection with the general charge and the leading facts of the case as therein stated, we are satisfied that the learned judge was correct, and that the case was fairly and properly submitted to the jury. They were instructed, inter alia, that if the tenant held and enjoyed the demised premises, the covenants on the part of the landlord to repair and make additions were minor and subordinate, and did not go to the essence of the contract so as to defeat the rent in toto; that he was not entitled to a verdict discharging him from all the rent, unless the premises, for the purposes for which they were leased, were worthless without such additions and alterations; that whatever damages the tenant sustained by reason of the landlord failing to perform his covenants might be deducted from the rent, and if these were equal to the entire rent, or in excess thereof, the tenant was entitled to a verdict.

We have not been furnished with the testimony in full, but in view of the facts as we gather them from the charge of the court, these instructions were substantially correct. The principle recognised in Obermeyer v. Nichols, 6 Binn. 159, has never been departed from in this state. That was an action of covenant for rent due on a lease in which the landlord had covenanted to make improvements. The court below charged the jury that the covenants on the part of the landlord were minor and subordinate, and that the damages for their non-performance could be defalked against the rent. Chief Justice TILGHMAN, in delivering the opinion of this court, said it was for the court to construe the lease and decide whether the covenants to be performed by the landlord were of such a nature that, without the performance of them, there was no obligation to pay the rent or any part of it, and that the ruling of the court below was right, for the reasons that the entry of the tenant was to precede the acts to be performed by the landlord, and it was evident that the former would enjoy a considerable benefit from the lease independent of those acts, and that full justice was done, therefore, to the tenant when it was left to the jury to take into consideration the non-performance of the covenants, and deduct from the rent the amount of the injury which the tenant had sustained. Recognising the authority of the case, the learned judge very appropriately said: "Every man's feelings would revolt at the doctrine that a tenant should be suffered to occupy and enjoy the demised premises for a whole year without making any compensation to the owner, on the ground that he did not make some trifling...