Brown v. Montgomery

21 Pa. Super. 262 | Pa. Super. Ct. | 1902

Opinion by

William W. Porter, J.,

The burden of the appellant’s contention is rested upon the answer of the court below to the defendant’s third point of charge. The point and answer are as follows: “ If the jury find from the evidence that R. L. Brown, the landlord in this case, said to Harry Montgomery to tell his father, the defendant, that if he wanted the house he could have it, and that fact having been communicated, the defendant agreed to it, such conduct on the part of Brown was in effect a withdrawal of the notice to quit; the parties were remitted to the original lease and Brown could not avail himself of the act of 1863, and the verdict of the jury must be for the defendant for such damages as you find he has sustained.” To this the trial judge answered, u All of the conversations between Brown and Harry Montgomery will be taken into consideration by the jury, to determine whether or not there was a withdrawal of the notice of December 28, or a new contract entered into.” Technically, the court did not in terms affirm or refuse the point by the answer quoted. In substance, however, the answer palpably means that the principle of law invoked is sound, but that the testimony to which the defendant desired the principle to be applied should not be restricted to parts of one or more conversations between the parties, but should include all the conversations which formed a part of the negotiations. It has been held that where a tenant has received the three months’ notice to quit required by an existing lease and on application to the landlord procures permission to remain, the notice is in effect withdrawn and the covenants of the existing lease furnish a consideration for the contract of renewal: Supplee v. Timothy, 124 Pa. 375. This doctrine was explicitly affirmed by the court in the case before us in the answer made to the defendant’s second point of charge. It was testified by defendant’s son and not denied by the plaintiff that in a conversation between the plaintiff and the defendant’s son (representing his father) held before the notice to quit was given, the former said that the house was at the defendant’s service. The plaintiff, however, contends that nothing came of this. The leave to stay would doubtless, if unconditionally given and accepted without more, have operated as a renewal. It was not so given and accepted. Subsequently a notice to quit was given. Neither of the parties treated the matter as closed. The plaintiff is alleged to have again said that the house was at the defendant’s service. But at the suggestion of the defendant’s son an attempt was made to agree upon a new lease. The language of the point does not comprehend these facts in the case. They are important since the conduct of the parties is in contradiction of the assumption that by the alleged permission to remain they had concluded an agreement for the coming year. The court below was therefore right in requiring that the jury should consider all of the conversations between the parties, and in refusing to instruct them to find for the defendant if they believed that the landlord had said generally that if the tenant wanted the house he could have it. It is to be observed that it is the defendant who complains of the answer to the point. The point as drawn might well have been refused. If error was committed no injury to the defendant followed.

The second, third, fourth and fifth assignments are, by the appellant, grouped for consideration. They are excerpts from the charge and, as the appellant says, are not assigned in order to show positive misdirection in them or in the general charge, but for the purpose of showing that the trial judge failed to properly exhibit to the jury all of the questions alleged by the defendant to be in the case. It is error to confine the attention of the jury to one view of a case where there is more than one which they should consider. If, however, no particular instructions be asked, the court is responsible for the general effect only of the charge, and in considering the charge the whole of it must be taken together. In this case the charge so taken discloses no reversible error: Pierson v. Duncan, 162 Pa. 187.

The sixth assignment is without substance. It complains that the court instructed the jury erroneously in respect to the measure of damages in case they found for the defendant. It is difficult to see how this injured the defendant as the jury returned a verdict for the plaintiff: Kunes v. Spangler, 2 Penny. 101.

The judgment is affirmed.