91 Pa. 336 | Pa. | 1879
delivered the opinion of the court,
The subject of complaint in the first assignment of error is that the plaintiff below was permitted to give in evidence the lease, on which his action was based, without any explanation of the material alteration apparent on its face.
Among other covenants on the part of the lessee, the lease, as originally written, contained the following: “Also to keep the water-pipes and hydrant, &c., in good repair.” These words were evidently erased by drawing a pen several times over them, and
If the erasure had been satisfactorily explained, it was still a question for the jury whether the lessee had duly notified his landlady of his election to retain the premises for the further term of three years. The testimony as to written notice left at her dwelling with an adult member of her family, was some evidence proper for the consideration of the jury, but it was not conclusive proof that she was actually notified of the tenants’ election. It was also a further question of fact for the jury and not for the court, to determine whether, in point of fact, there was an eviction of the tenant. The testimony, as we have it, is quite as consistent with his having acquiesced in her demand for possession on the 1st of April 1865, as with an eviction by her. The tenant, who succeeded him,- testified that he leased from Mrs. Davis on that day and went into possession. Eor aught that appears the premises may have been voluntarily vacated by the plaintiff then or prior thereto. It is scarcely necessary to say that if he acquiesced in the notice to quit, or voluntarily surrendered the possession at or before the close of his original term, he was not entitled to claim damages. The first and fourth assignments of error are sustained.
Judgment reversed and a venire facias de novo awarded.