Pusey v. Sipps , 56 Pa. Super. 121 ( 1914 )

Opinion by

Rice, P. J.,

We are of opinion that this case was correctly decided, for the reasons given by the learned trial judge in overruling the plaintiff’s rule for a new trial and motion for judgment non obstante veredicto. What we shall say will be merely supplementary to his opinion.

Criticism is made of this clause of his opinion: “But this case was neither declared on nor tried as a case for damages for the breach which occurred prior to the forfeiture. It is set forth in the plaintiff’s statement as a claim for rent, qua rent, and the breaches alleged are the nonpayment of the subsequent rent.” This construction of the statement of claim is strictly accurate, as will be shown by a brief reference to some of its material allegations. The action was assumpsit, and in his statement the plaintiff claimed $504 with interest and a collection fee of five per cent, which he alleged to be due and payable by the defendant under the terms of the lease. After setting forth that the defendant went into possession and paid the rent up to and including the rent due September 15, 1910 (the rent was payable monthly in advance), the statement alleged that he neglected and refused to pay the stipulated rent of $80.00 a month due on the 15th days of the months of October, 1910, to and including March, 1911; that the defendant violated the terms of the lease in that he did not pay the rent for those months: “wherefore and by reason thereof the plaintiff suffered damages” in the total amount claimed. Whether the action be regarded as a common-law action of debt for the recovery of rent eo nomine, with damages for its detention, or a common-law action, of covenant for the recovery of damages for the breach of the covenant to pay rent, it was founded exclusively on a claim of rent for the months named, and no other breach of covenant was alleged than the failure to pay rent for those months. If the plaintiff was not entitled to recover rent for those months there is no permissible view of the unamended statement of claim under which he could recover damages.

Comment is made that in Sipps v. Pusey, 49 Pa. Superior Ct. 326, we held that the defendant was hable for the rent for the five months during which he remained in possession after the plaintiff entered judgment in ejectment against him. But it is to be borne in mind that the forfeiture which the plaintiff attempted to enforce by ejecting the defendant, was held in abeyance, at the defendant’s instance, during the pendency of the rule to open that judgment, and, as he held possession during that period, it was just that he should pay rent. The decision does not warrant the implication- that, when the stay was removed and the determination of the tenancy became completely effective by the defendant’s surrender of the premises, the covenant to pay rent remained in force as to rent which but for this would have accrued afterwards.

Another suggestion is thus stated by counsel for appellant: “Besides this, after the writ of habere facias was dead and the tenant had remained in the property some five months after the writ was issued, and without any other writ or notice from the plaintiff, the defendant violated his lease which he had sought to uphold, and moved from the premises. When a tenant occupies the landlord’s property for five months after he claims the lease is terminated, he cannot then, if it suits him, move out and escape payment of rent.” It is true the defendant attempted to prevent the forfeiture becoming effective, but he failed in that effort and the plaintiff succeeded in his effort to have it sustained. After the rule to open the judgment was discharged and the temporary stay of proceedings was removed, the plaintiff did nothing, so far as the evidence shows, from which the defendant could infer that the termination of the lease would not be insisted on by the plaintiff or that the judgment would not be enforced. That judgment was in full force and had been duly determined to be a valid judgment. The writ of habere facias possessionem had not been set aside; it simply had been stayed pending the rule. Under these circumstances, the defendant cannot be said to have violated the terms of the lease or to have acted voluntarily in removing from the premises because he did not await the issuance of a new writ and subject himself to the costs of actual expulsion by the sheriff. When he removed in obedience to the judgment and the plaintiff’s election to terminate the lease, there was as truly a dissolution of the relation of landlord and tenant as where, after hostile assertion by a third person of a paramount title, by suit brought, the lessee, without fraud or collusion, yields thereto, and, on the trial of the issue between "him and the landlord, proves that the third person had title paramount. In such cases, actual expulsion from the premises by the sheriff is not necessary: Ross v. Dysart, 33 Pa. 452; Wilson v. Sale, 41 Pa. Superior Ct. 566; Jackson & Gross on Landlord & Tenant, sec. 1009, citing Greenvault v. Davis, 4 Hill (N. Y.), 643; Hamilton v. Cutts, 4 Mass. 349.

The plaintiff having terminated the lease, and the defendant having surrendered the possession under compulsion of the plaintiff’s proceeding for that purpose, the court was right in holding that the latter could not recover rent for the period after removal, either by virtue of the general covenant to pay rent or by virtue of the special agreement that “no such determination of this lease, nor taking or receiving possession of the premises shall deprive the lessor of any action against the lessee for the rent or for damages.” If at the time this suit was brought there was any rent due and unpaid for the months named, an action to recover the same would survive the plaintiff’s determination of the lease; but, as we have seen, no rent was due and unpaid.

The judgment is affirmed.