Zeigler v. Hallahan

• Decision Date: 13 June 1904
• Docket Number: 25.
• Citation: 131 F. 205
• Parties: ZEIGLER v. HALLAHAN.
• Court: U.S. Court of Appeals — Third Circuit

131 F. 205

ZEIGLER v. HALLAHAN.

No. 25.

United States Court of Appeals, Third Circuit.

June 13, 1904

Wm. Jay Turner and Samuel Dickson, for plaintiff in error.

John G Johnson, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS Circuit Judge.

The decision of the court below was based upon a case stated as follows:

'The plaintiff, Mary Helen Zeigler, on April 2, 1901, made executed and delivered to one Moses H. Lichten an indenture of lease for the premises known and numbered as No. 50 North Eighth Street, in the city of Philadelphia, of which indenture a copy is hereto attached, marked 'Exhibit A,' and made a part hereof, and the defendant, Peter T. Hallahan, by writing, became surety for the fulfillment of all the obligations of said Moses H. Lichten under and by virtue of said indenture of lease; said contract of suretyship being endorsed on Exhibit A. On or about April 29, 1901, an agreement supplemental to said indenture of lease, without consultation with or approval of the defendant, was executed by and between the plaintiff and the said Moses H. Lichten, as follows:

'It is hereby mutually agreed between M. Helen Zeigler and Moses H. Lichten, the parties to the foregoing indenture of lease, that the following shall become part and parcel thereof with like effect, as if the same were embodied in the foregoing agreement.

"It is hereby further covenanted and agreed in the event of the total or partial destruction of the within demised premises, rendering the same untenantable by reason of fire or other casualty, this lease shall from such time become absolutely null and void and the within lease shall be surrendered by the lessee to the lessor.

"In witness whereof the parties hereunto set their hands and seals this 29th day of April, A.D. 1901.

"Mary Helen Zeigler. (Seal.) "Moses H. Lichten. (Seal.)'

'Said Moses H. Lichten violated the covenants and conditions of said lease, by subletting the premises thereby let and demised, and by assigning said lease without the consent of the plaintiff, and by cutting a passageway through the south party wall of said premises into the adjoining premises, in consequence whereof, on January 4, 1902, the plaintiff, by virtue of the warrant of attorney to confess judgment in ejectment contained in said lease, entered a judgment in ejectment against said Moses H. Lichten in the court of common pleas, No. 3, for the county of Philadelphia, of December term, 1901, No. 2,180, and issued a writ of habere facias possessionem against Moses H. Lichten for the recovery of possession of said premises. Said Moses H. Lichten thereupon filed his affidavit, of which a copy is hereto attached, and obtained a rule in said court of common pleas to show cause why such judgment in ejectment should not be opened, and said Moses H. Lichten let into a defense, all proceedings to stay. To said affidavit of Moses H. Lichten the plaintiff filed her answer as required by the rules of said court of common pleas, and thereafter depositions were taken by the said Moses H. Lichten and the plaintiff. On March 31, 1902, said court of common pleas discharged said rule. On April 19, 1902, the said Moses H. Lichten caused to be issued a certiorari from the Supreme Court of Pennsylvania to said court of common pleas, but did not file any bond as required by the laws of the commonwealth of Pennsylvania for the purpose of making said certiorari act as a supersedeas. On April 30, 1902, the plaintiff issued an alias writ of habere facias possessionem under the aforesaid judgment in ejectment, and, by virtue of said writ, recovered possession of said premises, which until said date remained in the possession of said Lichten. On May 8, 1902, the record in said action of ejectment was duly certified to the Supreme Court of Pennsylvania, and on February 10, 1903, the said record was returned to said court of common pleas, with a remittitur certifying that the judgment of said court of common pleas, was affirmed. The rent for said premises reserved in said indenture of lease, was paid by said Moses H. Lichten up to January 1, 1902. On January 6, 1902, the agents of said Moses H. Lichten mailed to the plaintiff's attorney a check for the month's rent, in advance, of said premises, due January 1, 1902; but said check was returned to said agents of Lichten on January 9, 1902, accompanied by the following letter:

"Philadelphia, Jan. 9th, 1902.

"Dear Sirs: I beg to return herewith check to the order of Mary Helen Zeigler for $500, sent her on January 6th, in settlement of one month rent for premises No. 50 North Eighth street, due in advance January first.

"I have advised Miss Zeigler not to accept this check in view of the fact that she has cancelled the lease with Mr. Lichten and has begun an action ejectment for the purpose of obtaining possession of the premises. You are fully advised regarding the reasons for this course of procedure. Will you be good enough to acknowledge receipt of check enclosed and oblige.

"Yours very truly,

Wm. Jay Turner.

''To Mess. A. J. & L. J. Bamberger.'

'Between January 1, 1902, and April 30, 1902, the plaintiff received no compensation for the use of said premises. The yearly rental value of said premises is agreed to be $6,185.

'Should the court be of opinion that the defendant, Peter T. Hallahan, is indebted to the plaintiff, M. Helen Zeigler, by virtue of the contract of suretyship above set forth, under the foregoing facts, then judgment shall be entered for said plaintiff in the sum of $2,047.51, with interest thereon from April 30, 1902, or for so much less than that amount as the court shall determine shall be entered, if it shall be of opinion that any allowance shall be made by reason of the tender of $500 set forth, in the statement of facts. Should the court be of opinion that the defendant, Peter T. Hallahan, is not indebted to the plaintiff, M. Helen Zeigler, by virtue of the contract of suretyship above set forth, under the foregoing facts, then judgment shall be entered for the defendant. The right to sue forth a writ of error to the United States Circuit Court of Appeals for the Third Circuit for the purpose of having a review of the judgment entered in accordance with the opinion of the court is hereby expressly reserved unto both parties in this proceeding.'

The lease need not be set out in full. We may accept the statement made in the brief of the plaintiff in error that:

'The conditions of this lease that are of importance in the present case are that Lichten should keep the premises, and, at the expiration of his term, deliver them up in good order; that he should not assign his lease, nor underlet the premises, without the written consent of the plaintiff in error; and that, if he did assign his lease or underlet the premises without such consent, or fail to keep the other conditions of the lease, the plaintiff in error might terminate the lease and recover possession of the premises.'

The contract of suretyship was as follows:

'For the valuable consideration heretofore received, I, Peter T Hallahan, of the City of Philadelphia, for myself, my heirs, executors and administrators do hereby covenant and agree to and with the above named lessor, her heirs and assigns, that if the foregoing agreement entered into by and between the lessor and the lessee for and during the term of three years, eight months and fifteen days from the first day of Amy, A.D. 1901, that then the said agreement shall be promptly performed by me and that I will pay all damages arising of any breach of said agreement. ...