Wilkinson v. Kugler , 153 Pa. 238 ( 1893 )

Opinion by

Mr. Chief J ustice Paxson,

The principal question before the court below was, whether the appellant had authorized his tenant, H. C. Kugler, to put in the steam heater. While the evidence upon this point was not strong, we cannot agree with the appellant that there was no evidence before the auditor to justify such finding. There were but two witnesses examined, the landlord, and Kugler, his tenant, who was also his son-in-law. Both witnesses were evidently unfriendly to the execution creditor. The testimony of the appellant was evasive. He admits, however, that he authorized .necessary improvements to be made by the tenant. The latter testified that the steam heater was not necessary at the time, but would have been later on. It is not likely such an expense would have been incurred, unless its necessity was imminent. He also said that this was the only bill Mr. Dermond, his landlord, authorized him to contract for repairs. We think the evidence upon this point was sufficient to sustain the findings of the auditor.

The appellant claimed and retained the heater in question, and the auditor properly abated his claim for rent to that extent. The appellant contends, however, that after crediting the cost of the heater there is still enough rent due to absorb the fund in court. This point is raised by the fourth specification of error. Unfortunately there is nothing before us to enable us to decide this question satisfactorily. The auditor has not found the facts necessary to rule it. Upon this point the report is inadequate. There is no finding of the amount of rent due the appellant, and we cannot agree with the learned judge below that such finding was unnecessary. There is no distinct finding that the costs of any of the fixtures beyond the steam heater were proper credits on account of the rent, nor does there appear to be any evidence which would have justified the auditor in so finding, beyond some painting and spouting which appellant admits having authorized. In his schedule of distribution the auditor has contented himself with stating the amount of the fund in court, from which he has deducted the costs of the audit and the amount awarded to wage claimants, leaving a balance for distribution, $623.03, which he awards to the execution creditor, appellee. This is wholly unsatisfactory. The amount of rent due the appellant should have been distinctly found, as also the credits which the tenant, Kugler, was entitled to claim by reason of the cost of the heater, or for any other cause. This would have shown the balance, if any, still due for rent. If the credits allowed amounted to as much as the rent, the money was properly awarded to the execution creditor. If, however, upon a proper adjustment of the account there is a balance of rent due the appellant, it should be awarded to him. Under the circumstances, the case will have to go back to the auditor for a proper finding of facts.

The decree is reversed at the costs of the appellee, and the record remitted to the court below with instructions to proceed in accordance with this opinion.