99 Pa. 313 | Pa. | 1882
delivered the opinion of the Court, January 23d 1882.
It is certainly true, that when the landlords in this case exacted from the tenant a covenant that he should make all necessary repairs to the premises demised, they thereby consented that such repairs should be made. But the question that arises is, whether this is the kind of consent, which is within the contemplation of the Act of 1868, subjecting the building of an owner to a lien, for repairs done by the tenant. We held in McClintock v. Criswell, 17 P. F. S. 183, that the consent intended by the act is an absolute consent consistent with the right to do the work on the credit of the building. In that case, it was agreed that the work should be done at the cost of the tenant, and for that reason, we decided that the consent of the landlord must be regarded as a qualified, and not as an absolute consent, .and therefore the act was inapplicable. In other words, the circumstance that the tenant and not the landlord was to defray the expense of the improvement, was conclusive that neither the landlord, nor the building, was to be subject to the cost of the work. In Hall v. Parker, 8 W. N. C. 325, the demised premises were held subject to the lien because, although the tenants were to do the work at their own cost, yet they were to be practically repaid, by an abatement of rent for the first year, from $600 to $5, so that in effect the cost was really to be borne by the lessor. Here also the test of the question was, who was to incur the cost of the repairs ? If the landlord, the building was subject to the lien, but if the tenant, it was not. The particular form of words employed was not regarded, but rather
Judgment affirmed.