Yinger v. Youngman

Decision Date12 March 1906
Docket Number1-1905
Citation30 Pa.Super. 139
PartiesYinger, Appellant, v. Youngman
CourtPennsylvania Superior Court

Argued March 9, 1905 [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Lycoming Co.-1903, No 148, on verdict for defendant in case of William Yinger v Samuel L. Young and Robert Mitchell.

Replevin for goods distrained. Before Hart, P. J.

The facts are stated in the opinion of the Superior Court.

The court charged in part as follows:

[It appears that Mr. Lambert took possession of these premises, and some time in June following, by an arrangement between him and the plaintiff in this case, William Yinger, Mr. Yinger took possession of this property in the place, and stood in the shoes of Mr. Lambert, and the rights he was possessed of there were no higher than Mr. Lambert possessed; and the relation that existed between him and Mr. Youngman from the time he became the tenant of that property was the same that had existed between Mr. Youngman and Mr. Lambert. Yinger's goods upon the premises were just as much liable for seizure for rent in arrear as Mr. Lambert's goods were liable while they were there.]

[It also appears from the evidence that there was steam heat in this building; that the building was supplied with steam heat from the Updegraff steam heat plant; but it is complained on the part of the plaintiff here, Mr. Yinger, that there was not sufficient heat in that building. Now, you have heard some description here of the condition of that room. I can say to you that it was the duty of Mr. Yinger to make such use of the room as was reasonable he should make; in other words, if there were openings in the room where the cold could get in and which could be easily repaired, some duty was due from him in that respect. Another thing, it is in evidence that there were radiators on the floor and that there were places to attach these radiators; and in the absence of any positive agreement on the part of Mr. Youngman that he should attach those radiators, even if you believe that Mr. Youngman agreed to furnish the radiators, they were there, and it was as much his duty to attach them as it would be Mr. Youngman's. Such an excuse as that is hardly sufficient to avoid the payment of rent, if you believe the rent was honestly due.]

[Now, it is claimed on the part of the plaintiff that since the issuing of this writ of replevin, or since the issuing of the landlord's warrant, $ 50.00 has been paid to Mr. Youngman. You have heard the circumstances under which that claim is made. A check was given to Mr. Youngman for the sum of $ 50.00. This check has never been paid. It is in the hands of Mr. Youngman, and I understand he has presented it to the bank, and you have heard what has been said in reference thereto. Now, I can say to you that if Mr. Youngman had received that $ 50.00 represented by that check, that that would be a payment on account of this $ 90.00, but a check is not payment unless it is received as such and the check has actually been paid. Hence, the question is here, what amount of rent was due and unpaid on this lease at the time that this levy was made, which was on March 14, which I understand would include the rent for that month, because the rent is made payable in advance -- hence the question is, what would be due on April 1, 1903?]

Plaintiff presented these points:

1. If the jury find from the evidence that S. L. Youngman at the time the memorandum for steam heat was made on the back of the lease, agreed to put radiators in the premises leased from him by plaintiff, and that he failed to keep his agreement, and that the plaintiff has paid the rent for the premises in question, then the verdict must be for the plaintiff, William Yinger. Answer: We say to you if you find the rent for the premises has been paid by the plaintiff, then your verdict, of course, would have to be for the plaintiff; but with reference to the matter of radiators, as referred to in this point, we have already charged you particularly with reference to the law upon that subject; and with what we have said in our general charge with reference to that, we will affirm this proposition.

3. Under all the evidence in this case the verdict of the jury should be for the plaintiff, William Yinger. Answer: We refuse to so charge you.

Verdict and judgment for defendant for $ 90.45 for rent in arrears and for $ 65.00, the value of the goods distrained. Plaintiff appealed.

Errors assigned were in admitting in evidence the lease between the parties; in refusing to admit evidence as to the oral agreement referred to in the opinion of the Supreme Court; above instructions, quoting them.

Reversed.

J. M. Reilly, with him J. Horace Shall and Edw. S. McGraw, for appellant, cited: Pyroleum Appliance Co. v. Williamsport Hardware & Stove Co., 169 Pa. 440.

C. Bartles for appellees, cited: Long v. Fitzsimmons, 1 W. & S. 530; Cornell v. Vanartsdalen, 4 Pa. 364; Bears v. Ambler, 9 Pa. 194; Kline v. Jacobs, 68 Pa. 57; Moore v. Weber, 71 Pa. 429; Eberle v. Bonafon, 17 W.N.C. 335; Pioso v. Bitzer, 209 Pa. 503; Replogle v. Singer, 19 Pa.Super. 442; Knight's Estate, 20 Pa.Super. 413.

Before Rice, P. J., Beaver, Orlady, Smith, Porter and Henderson, JJ.

OPINION

RICE, J.

This was an action of replevin for goods distrained in March 1903, under a lease from Samuel Youngman to H. J. Lambert for the term of one year from April 1, 1902. Crediting the admitted payments the amount distrained for was in excess of the amount due under the terms of the lease. The right to distrain for this excess was claimed under the following agreement under seal between Youngman and Lambert indorsed on the back of the lease: " And now, October 22, 1902, I agree that the price required for heating my half of the large storeroom, Nos. 336-338 Pine street, may be added to the rent provided herein which is $ 25.00 for the entire store, my half $ 12.50, subject to the conditional reduction proposed in proposition of F. H. Moore, proprietor of the steam plant." It appeared by the testimony of Youngman, the defendant, that the charge of the steam heating company for heating the entire building, beginning in October, 1902, was $ 25.00 a month, for which he as owner of...

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    • United States
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    • February 27, 1913
    ...memorandum can be shown, we refer to the following cases: Sloss-Sheffield Steel & Iron Co. v. Iron Co., 46 Pa.Super. 164; Yinger v. Youngman, 30 Pa.Super. 139; Campbell v. Erb, 35 Pa.Super. 436; Diehl Co. v. Phila. Elect. Co., 49 Pa.Super. 257; Perkiomen R. R. Co. v. Bromer, 217 Pa. 263, 66......

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