Kirch v. Crawford , 61 Pa. Super. 288 ( 1915 )

Opinion by

Henderson, J.,

This is an appeal from the refusal of the court to strike off a judgment entered on a warrant of attorney contained in a lease. This warrant authorized the confession of judgment in case of violation of any of the covenants and agreements made by the lessee. The lease provided for the payment of rent monthly in advance and contained an agreement that in case default be made at any time in the payment of any installment of rent the entire balance of the rent for the term should become due and payable. The statement filed with the confession of judgment shows a default in payment of the rent due January 1 and February 1, 1913, and the judgment was entered because of this default. The principal objection made to the judgment is that the affidavit of default is not made by Charles J. Kirch, but by John P. Kirch, a stranger to the contract, and Rule 13 of the Court'of Common Pleas is appealed to in support of the objection. This rule provides that “all affidavits required by these rules may be made by the party or in proper cases by his agent.” If this rule were applicable to the case in hand it is not clear that its requirements have not been met, for the affidavit states that the deponent is familiar with the facts set forth and is authorized to make this affidavit.. But our attention has not been called to any act of assembly or rule of court which makes necessary an affidavit of default under such circumstances. The affidavit filed is a part of the statement of claim and sets forth a default, but the defendant executed the warrant of attorney authorizing a confession of judgment when default was made in the payment of rent as provided for in the lease. There is no suggestion that this default did not exist nor denial that the rent was due. All that was necessary under the circumstances, therefore, appeared in the record. The judgment was confessed by an attorney-at-law in compliance with the authority of the appellant and on a state of fact brought about by himself. There is nothing, therefore, on the face of the record to justify the court in striking off the judgment. It was held in a similar case, Kahn v. Harlan, 55 Pa. Superior Ct. 568, that an affidavit of default was not necessary to enable a landlord to collect arrears of rent by means of a judgment entered on a warrant of attorney contained in the lease. The soundness of this conclusion is questioned by the learned counsel for the appellant, but we are not persuaded that it does not rest on a substantial foundation. The lease set forth the time and place for the payment of the rent. The amount due as evidenced by the confession of judgment is not in dispute, and the whole defense to the judgment is of a strictly technical character. The landlord is not seeking to forfeit the lease by an amicable action of ejectment or by a reentry for default, and the cases cited by the appellant do not affect the question. In Rea v. Eagle Transfer Company, 201 Pa. 273, and Bergdoll, to use, v. Spalding, 234 Pa. 588, the judgments were in ejectment by which means the plaintiffs sought to work a forfeiture of the lease and to recover the premises. Drake v. Penna. Coal Co., 217 Pa. 446, was also an action of ejectment for forfeiture and the case turned partly on the terms of the lease. Homet v. Singer, 35 Pa. Superior Ct. 491, was of like character. To enable a lessor to enforce a forfeiture his right to do so must be distinctly reserved. Evidence of the happening of the event'on which it may be exercised must be clear. The right must be promptly enforced. The result of the forfeiture must not be unconscionable: Thompson v. Christie, 138 Pa. 230. This equitable rule has no application in a proceeding to collect arrears of rent on a lease. Such a proceeding is in affirmance of the contract and has the effect merely to enforce compliance with the agreement.

The decree is affirmed at the cost of the appellant.