Waldman v. Baer , 81 Pa. Super. 390 ( 1923 )

Argued April 25, 1923. This appeal has two complaints: 1, that judgment was not stricken off for apparent irregularity; 2, that it was not opened to a defense on the merits.

1. The judgment was entered pursuant to a warrant in a lease. The lease provided that "...... H. Waldman by H. Windt Company herein called lessor, hereby leases to Joseph Baer ...... for the term of two years commencing on the 1st day of August, 1920......" It was signed by Joseph Baer as lessee and by "H. Windt Co. Agts." It bore a written assignment to Lena Gottlieb executed by Henry Waldman on December 31, 1921. By the terms of the lease the assignee obtained all the rights and powers enjoyed by the assignor. The authority to confess judgment against the lessee for breach of covenant was coupled with a release of all errors in its exercise. The petition to strike off was based on several grounds, but in considering that motion we need only refer to those said to show irregularity on the face of the record. The tenant contends that the judgment should not have been entered in the name of H. Waldman, but in the name of H. Windt Co. Agents, and, in addition, that it should not have been entered to the use of Lena Gottlieb. In view of the tenant's release of errors, we need not consider the subject (Isman v. Niederman,74 Pa. Super. 175, 179), though we have no doubt the judgment naming H. Waldman instead of Windt Co. Agents as legal plaintiff was authorized by the lease (Gleadall v. Kenney, 23 Pa. Super. 576), and specifying a use-plaintiff did not injure defendant, (Pennsylvania Co. v. Shanahan, 10 Pa. Super. 267).

2. We find nothing in the depositions suggesting abuse of discretion in refusing to open the judgment. The breach of covenant alleged as the basis for the entry of the amicable action in ejectment and confession of judgment was that prior to the expiration of the term the tenant "moved all the goods and chattels with the exception of a few pieces of shelving from the premises described in said lease, thereby violating the covenants and conditions of said lease, and thereby defaulting in the payment of rent for the balance of the term which thereupon became due and payable." The lease provided, "Any removal or attempt at removal of any goods or chattels from said premises by the tenant while any portion of the rent for the full term shall be unpaid shall be deemed a fraudulent and clandestine removal, and the whole rent for the entire term shall fall due and be collectible at once......" The removal of the goods took place about March 2 or 3, 1922, the term not expiring until the following September 30th. Appellant admits the removal of almost all the goods, but asserts that it was done with the consent of the agent Windt Company, and that, so permitted, it was not a breach of the terms of the lease.

There was neither proof of express authority in the agent to consent for the landlord, nor anything suggesting such authority, save that the agent originally executed the lease and thereafter received the rent. As the assignment of the lease to Gottlieb was made on December 31, 1921, Windt and Co. only collected the rent for Gottlieb for three months prior to the removal. Authority from Waldman to make the lease and collect the rent and the collection of it to March 1, 1922, are not sufficient to authorize the agent to impose on his principal the effect of a waiver of the right to insist that the leasehold shall remain furnished as provided in the lease: Edmundson v. Singer Sewing Machine Co., 51 Pa. Super. 545, 548.

Judgment affirmed.