Vim Motor Truck Co. v. Philadelphia Electric Co.
| Decision Date | 21 April 1924 |
| Docket Number | 334-1923 |
| Parties | Vim Motor Truck Company, Appellant, v. The Philadelphia Electric Company |
| Court | Pennsylvania Superior Court |
Argued March 12, 1924
Appeal by plaintiff, from judgment of C.P. No. 1, Phila. Co.-1922 No. 7777, discharging a rule for judgment for want of a sufficient affidavit of defense, in the case of Vim Motor Truck Company v. The Philadelphia Electric Company.
Assumpsit on written contract. Before Shoemaker, P. J.
The facts are stated in the opinion of the Superior Court.
Rule for judgment for want of a sufficient affidavit of defense. The court discharged the rule. Plaintiff appealed.
Error assigned was the order of the court.
Affirmed.
George J. Edwards, Jr., for appellant. -- The alleged oral contract presented no defense to the plaintiff's claim. Under the terms of the lease the defendant was under the liability of making all necessary repairs: Levin v. Phila., 277 Pa. 560; Levine v. McClenathan, 246 Pa. 374; Wood v. Carson, 257 Pa. 522; Graham v. Hay, 81 Pa.Super. 594; Sessa v. Rozzi, 68 Pa.Super. 593; Robinson v. Heverin, 50 Pa.Super. 546.
Martin P. Bergen, and with him DeWitt C. Robinson, for appellee.
Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
The plaintiff, the Vim Motor Truck Company, brought suit against the Philadelphia Electric Company to recover a certain sum of money coming to them under a contract for electric service. The defendant admits the amount claimed, but sets up a counterclaim alleging that it was the subtenant of the Vim Motor Truck Company and others under a written lease covering a building situated at the northwest corner of 23d and Market streets and that as such subtenant, it had performed certain specific repairs for the Vim Motor Truck Company at the latter's special instance and request; and that the proper officers of the company duly authorized had agreed to pay for such repairs. The plaintiff asked the court below to enter judgment for want of a sufficient affidavit of defense, which the court refused to do. The lease to the Philadelphia Electric Company contained the following clause: " The lessee shall keep the demised premises in good order and repair, reasonable wear and tear excepted, except as hereinafter stated, and at the end of the term will deliver up the said premises in the same good order and condition that the lessee receives the same, reasonable wear and tear and damage by fire and the elements alone excepted." We do not think the above clause was an engagement to keep the...
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