Fitzpatrick v. Rogers , 75 Pa. Super. 273 ( 1920 )

Opinion by

Keller, J.,

This was an action in assumpsit upon a lease for a furnished apartment. Two items of claim were stated : The first for unpaid rental, the second (under a clause in the lease), for damage to a piece of furniture by the negligent use thereof.

1. Appellant, the lessee, vacated the premises before the expiration of her term. This, of course, did not relieve her from paying the rent for the unexpired term, unless the lessor accepted a surrender of the premises, or re-rented the apartment, in which event the rent thus received must be credited on the rent due. The affidavit of defense averred that appellant had surrendered possession of the apartment and lease on April 30, 1919, at the instance of and with the full knowledge and consent of the appellee who thereupon accepted the surrender of said lease. It is true she also averred that such surrender was in pursuance of an express agreement between herself and appellee, and did not set forth when said agreement was made and whether oral or in writing. But the agreement to surrender was only preliminary to the actual surrender and the affidavit distinctly averred that the surrender was made on April 30, 1919, at the instance of and with the consent of appellee and was accepted by her. If on the trial she proved these allegations, the plaintiff could not recover. Appellant was not required to set forth her evidence in her affidavit. But whether the affidavit was sufficiently explicit in this respect or not (and the writer feels that it was), we think it was sufficient to prevent judgment on the averment as to a re-renting.

The affidavit averred that the plaintiff, upon the removal of appellant, rented the apartment to other tenants for the full balance of the term and upon the same terms and stipulations in all particulars, as contained in appellant’s lease. If this averment was true then plaintiff could not recover in this action. She must credit on her claim against appellant whatever rent she may have received from the succeeding tenant, and if he rented the premises for the full term at the same rent, there was no balance due by appellant. Nor was it a fatal defect that the affidavit did not state the name of the succeeding tenant. That was more in the knowledge of the appellee than of appellant and the former could not be injured by the omission. Whatever the tenant’s name there could be no recovery if there had been such a re-renting for the full balance of the term at the same rental.

2. The injury to the plaintiff’s furniture was specifically denied in the affidavit of defense; and in addition, the claim was for damages sounding in tort, was wholly an estimate and included the cost of reupholstering four pieces of furniture, which were not damaged by appellant, in order that “the entire suit might match.” The claim was of such a character that it required more than a mere calculation to fix the amount and hence the damages could not be assessed by the prothonotary: Riott v. Blackstone, 10 Pa. Superior Ct. 591; Watkins v. Phillips, 2 Whart. 209; Wallace v. Gibson, 11 W. N. C. 498; Siner v. Henderickson, 1 W. N. C. 94; 1 Troubat & Haly’s Practice (Brightly’s Ed.), section 453.

No opinion was filed by the court below so that we do not have before us the benefit of the court’s reasons for entering the judgment.

The fourth assignment of error is sustained and the judgment is reversed with a procedendo.