Bush v. J.H. Frutchey, Appeal, 34

Appeal, 34 | Pa. Super. Ct. | Mar 4, 1924

Submitted March 4, 1924. The plaintiffs executed a written lease to the defendant for a dwelling house for the term of one month. The lease contained the following covenants: "It is agreed that if the lessee (with the written consent of the lessor) shall continue in possession after said term, the agreement shall be immediately for another like term," "It is understood that this lease shall not be extended after the term is expired." Each of these clauses express the same thought, that the lease shall not be extended after the term has expired unless with the written consent of the lessor.

The defendant continued in possession after the month had expired. Judgment was then entered on the warrant contained in the lease and a writ of possession issued. There was then an application to open the judgment which the court refused to grant. There are two grounds of defense: 1st — That there was a verbal understanding between the parties, that if the lessee continued to pay $40 per month, he could remain on the premises. There is no allegation that the written consent of the lessors was obtained as provided by the lease. It was, therefore, the function of the court below to weigh the contradictory testimony in the light of the terms of the lease and to decide whether the oral testimony was such as in the exercise of a sound discretion warranted the court to submit the matter to a jury. 2d — That the lessors had accepted checks in payment of rent for subsequent months. There was testimony to show that the lessors, upon the receipt of the checks, handed them to their attorney and the checks were never cashed and the defendant informed that they would never be used. This, we think, was sufficient to show that there was no payment or accepting of rent after the expiration of the term. The application to open a judgment is in the nature of an equitable proceeding demanding the exercise of sound discretion on the part of the court, Krall v. Lebanon Valley Savings Loan Assn., 277 Pa. 440" court="Pa." date_filed="1923-05-07" href="https://app.midpage.ai/document/krall-v-lebanon-valley-savings--loan-assn-6256076?utm_source=webapp" opinion_id="6256076">277 Pa. 440; Isman v. Niederman, 74 Pa. Super. 175" court="Pa. Super. Ct." date_filed="1920-02-28" href="https://app.midpage.ai/document/isman-v-niederman-6280607?utm_source=webapp" opinion_id="6280607">74 Pa. Super. 175. We are convinced that the testimony submitted fully supported the action of the court in concluding that the lessee was not relieved by any word or action of the lessors from the conditions imposed by the lease and that the judgment of amicable ejectment was properly entered.

The assignment of error is overruled and the order of the court below is affirmed.