Ralph v. Deiley

• Decision Date: 12 March 1928
• Docket Number: 43
• Citation: 141 A. 640,293 Pa. 90
• Parties: Ralph et al., Appellants, v. Deiley et al
• Court: Pennsylvania Supreme Court

141 A. 640

293 Pa. 90

Ralph et al., Appellants, v. Deiley et al

No. 43

Supreme Court of Pennsylvania

March 12, 1928

Argued January 30, 1928

Appeal, No. 43, Jan. T., 1928, by plaintiffs, from judgment of C.P. Northampton Co., July T., 1921, No. 36, on verdict for defendants, in case of Louis M. Ralph et al. v. Milton Deiley et al., trading as Deiley Brothers Company. Reversed.

Assumpsit for breach of covenants of lease. Before McKEEN, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendants. Plaintiffs appealed.

Error assigned, inter alia, was refusal of judgment for plaintiffs n.o.v., quoting record.

The judgment of the court below is reversed, and it is directed that judgment be entered for the amount shown to be due plaintiffs, costs to be paid by appellees.

Edward J. Fox, with him James W. Fox, for appellants. -- The burden of proof to establish a surrender and acceptance of the lease by the lessor rests upon defendant: Auer v. Penn, 99 Pa. 370; Lane v. Nelson, 167 Pa. 602; Reeves v McComeskey, 168 Pa. 571; Snyder v. Henry, 32 Pa.Super. 167; Smucker v. Grinberg, 27 Pa.Super 531; Ghegan v. Young, 23 Pa. 18; Fisher v. Milliken, 8 Pa. 111.

C. F. Smith, of Smith & Paff, for appellees. -- While a reletting in itself is not conclusive evidence of acceptance of an express surrender or abandonment of premises, nevertheless if it is for a longer term and upon different terms than the original lease, and is done without some notice or indication to lessees that the reletting is for the benefit of the tenant or that the lessees will be held for the deficiency of rent, it becomes a question of intent and a question of fact for the jury to determine under all the evidence in the case whether the surrender or abandonment was accepted or not: Rafferty v. Klein, 256 Pa. 481; Jenkins v. Root, 269 Pa. 229; Murphy v. Losch, 148 Pa. 171.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

The appellants leased a property in the City of Bethlehem to the firm of Deiley Brothers Company for five years. The rent stipulated was $ 18,000, payable in monthly installments, $ 300 in cash at the beginning of each year of the lease, and eleven bankable notes in like sum for the remainder of that year; one note falling due each month. The lease provided, among other things, that, in the event of removal before the expiration of the term, all rentals for the entire term should immediately become due and payable, and on the removal of personal goods from the property without all the rent for the entire term having been paid, "the whole rent in this lease shall be taken to be due and payable." The lease could not be assigned, nor could any portion of the premises be underlet without the written consent of the parties.

During the first year of the lease, lessees organized a corporation of the same name, which, without an assignment or a sublease, conducted business on the property; but, as the rent and the notes were paid to a bank, lessors knew nothing of the change until one of the notes went to protest. As the parties concede that the first lessees continued to be bound by the lease, this attempted substitution is unimportant. The assignment of the lease and the acceptance of rent from an assignee does not relieve the original lessee from liability: Ghegan v. Young, 23 Pa. 18; Fisher v. Milliken, 8 Pa. 111. In any event, this lease specifically provides: "This indenture shall bind all persons claiming under the parties hereto, in whatever character, as fully as if they were in every instance herein named."

The corporation failed in business, and receivers were appointed. Counsel for the receivers notified the lessors that the premises would be surrendered on the first day of May, 1921, when the lease had two years to run. All property of the lessee was removed. The lessors subsequently relet the premises to several tenants for rentals that were less than that called for in appellants' lease. In the last lease, an option was given to the lessees to continue the term for two years beyond that called for in appellees' lease. It also contained a covenant relative to the heating of a part of the premises, but, even if this sum should be included as rent, all amounts received by the lessor did not equal the amount called for in the original lease.

The lessor sued for the difference between the rent so received and the balance of the rent due under the first lease. Defendant contended in the court below that there had been a surrender of the lease through a reletting of the property. The court below charged the jury that it was absolutely essential to lessors' right of recovery that lessees be notified the surrender offered was not accepted. The jury found for lessees, but the court below sustained the judgment on the ground that a reletting by the landlord constituted, in law, an acceptance of surrender. This appeal followed. If the court was correct in this view, then the previous erroneous instruction is immaterial.

We had occasion to review some of the questions before us in Jenkins v. Root, 269 Pa. 229, 231. We pointed out that "care must be taken to distinguish cases in this State where it has been held that a second lease may exist for the same premises and for the same term, where the first lessee, without right, abandons the possession. [In such cases,] the landlord may resume possession and rent or repair the property, in the interest of the first tenant, who remains liable for any defalcation or deficiency in the rent, and the joinder of the first lessee in securing another tenant will not work a surrender in law unless the owner agrees thereto: Auer v. Penn, 99 Pa. 370; Lipper v. Bouve, Crawford & Co., 6 Pa.Super. 452."

Nothing is better settled in Pennsylvania in the law of landlord and tenant than that a tenant for years cannot relieve himself from liability under his covenant to pay rent by vacating the demised premises during the term and sending the key to the landlord. The reason for this is, one party to a contract cannot rescind it at pleasure: Auer v. Penn, supra.

When the lessee quits the premises with an intention to give up all rights to them, and to disengage himself from liabilities springing from the contract of lease, to make his effort effectual he must procure the lessor's assent, or, in other words, there must be a surrender. A surrender is the yielding up of an estate for years to him who has the immediate reversion, and the effect is to pass the estate of the tenant to the landlord, extinguishing the rent reserved: Milling v. Becker, 96 Pa. 182, 185. Surrender is a contractual act, and it occurs only through the consent of both parties, evidenced by an express agreement or unequivocal act of the parties which...