Whiting v. Pittsburgh Opera House Co.
| Decision Date | 21 October 1878 |
| Citation | 88 Pa. 100 |
| Parties | Whiting & Co. <I>versus</I> The Pittsburgh Opera House Company. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 255.
Thomas M. Marshall, Jacob S. Slagle and S. C. Schoyer, for plaintiffs in error.—The contract found by the jury may be stated in a few words. The plaintiffs, in March or April 1874, made a parol contract leasing the premises to the defendants, Whiting & Co., for the term of three years, commencing at the 1st of April 1875, possession in pursuance of this contract and valuable improvements made on the premises.
Does the limitation in the statute as expressed, "of three years from the making thereof," avoid the lease?
It is an almost invariable rule in Pennsylvania to make contracts of lease three months in advance of the possession, and the construction contended for would, in effect, destroy the proviso of the statute. A very large proportion of the leases in this state have been held and enjoyed under parol contracts to commence in futuro. Nearly every contract of lease, whether parol or written, is prospective as to possession. The system of three months' notice to leave has established a usage of leasing three months in advance of the possession.
In any event, our case is taken out of the statute by possession under the lease and valuable improvements, which could not be adequately and completely recompensed otherwise than by possession under the contract.
M. W. Acheson, for defendant in error.—A verbal lease for three years is good only where it commences from the time it is made, and it cannot be made to commence from a future day: Brown on Statute of Frauds, sect. 33; Taylor on Landlord and Tenant, sect. 30; Rawlins v. Turner, 1 Ld. Raym. 736; 12 Modern Rep. 610; Snelling v. Lord Huntingdon, 1 Cr., M. & Ros. 20; Boydell v. Drummond, 11 East 142; Delano v. Montague, 4 Cushing 42; Chapman v. Gray, 15 Mass. 443; Kelly v. Terrell, 26 Georgia 551; Nones v. Homer, 2 Hilton (N. Y.) 116; Wheeler v. Conrad, 6 Phila. 209.
The improvements claimed to be the consideration for the alleged lease were of trifling value, and could readily be compensated in damages. The pane of glass cost $125, and the elevator about $500, according to defendants' testimony. Moreover,...
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