72 Pa. 285 | Pa. | 1872
Lead Opinion
The opinion of the court was delivered, by
It has not been and cannot be controverted that if the instrument of writing, a copy of which was filed ,in the court below, was a lease of the land with the building erected thereon, and contained an express covenant to pay the rent, the destruction of the building by fire, even though the lessor had insured the building and had received the insurance-money thereon, constituted no defence, either in law or equity, to an action of covenant to recover the stipulated rent; Pollard v. Shaaffer, 1 Dall. 210; Magaw v. Lambert, 3 Barr 444; Fisher v. Milliken, 8 Id. 121; Dyer v. Wightman, 16 P. F. Smith 427. Even in the case óf a lease of chattels with a house, where the chattels are all destroyed without any fault of the tenant, the better opinion seems to be that it affords no ground of defence pro tanto. For in Taverner’s Case, 1 Dyer 55-6, there was a lease of land and a flock of sheep at a certain, rent, and all the sheep died, though the point was not actually decided, the doctrine was asserted that such loss of enjoyment did not relieve the tenant. This is cited with approbation by Mr. Justice Strong in Workman v. Mifflin, 6 Casey 870, and many other authorities, both in law and in equity, adduced in support of the general principle. Indeed in Fisher v. Milliken, 8 Barr 120, Mr. Chief Justice Gibson lays it down broadly that nothing but a surrender, a release or an eviction can in whole, or in part, absolve the tenant from the obligation of his covenant to pay the rent.
That the agreement in question was a lease of the land as well as of the building thereon, we think is very manifest. It would be a mere refinement to escape the application of a clear rule of law, which may operate hardly on these plaintiffs in error in this instance, to hold otherwise. We are bound to stand super antiquas vias, and not to stray aside into unknown by-paths which may lead we cannot tell where. No form of words is required to constitute a lease: Moore v. Miller, 8 Barr 272. “It is not necessary,” says Mr. Justice Coulter, “that the term lease should be used. Whatever is equivalent will be equally available. If the
By the agreement in suit, Gfanster agreed as the party of one part, with Bussman, Rahe & Company as parties of the second part, to erect a store-house in front of his own house, on the Negley lot in East Liberty, and to furnish the same with counters, shelving and other fixtures, to be ready by the 1st of August 1868, or as much sooner as practicable, at the rent of $600 until the 1st of April 1869, and thereafter, for the term of five years, at the rate of $800 per annum. It is true that there are here no formal words of demise, but it is very manifest that after the erection of the building, there was created a term of years in the premises with a certain commencement and a certain termination; in short with all the requisites of a demise. Ought there to be any doubt that if this was a demise of the buildings when erected it was also a demise of the ground upon which it stood ? Had the goods on the premises been distrained by the lessor for arrears of rent, would the tenants have been heard for a moment to allege that the distress was unlawful because the rent did not issue out of the land? We think not. Not only does the instrument expressly recognise “ the Negley lot in East Liberty,” or at least so much as the house would occupy as part of the premises demised, but can there remain any doubt of it when it goes on expressly to provide that “ if the party of the first part wish to sell the property, the party of the second part to have the first offer and preference, on equal terms to any other purchaser ?” Wfia-t property ? Certainly the demised premises, and certainly not the building without the lot on which it was erected. The plaintiffs in error expressly recog: nise and admit that they continued to be tenants of the land after the fire, for they offer in the affidavit of defence to pay to the defendant a just and fair proportion of the rent reserved as ground-rent. The consideration of the acceptance of the lease originally, undoubtedly was the erection of the store-house, and furnishing it with shelves, counters and other fixtures, in the manner prescribed, and had this not been done the lease would never have gone into effect, and the lessees would not have been bound to pay rent. It was a condition precedent. But the house was erected and furnished with fixtures to the satisfaction of the lessees, and they took possession and paid the rent up to the time of the fire. It is not easy to perceive how the case would have been different, if the house had actually been built and furnished before the agreement for the lease was made.
Nor can it, we think, be successfully maintained that there was not in this lease an express covenant by the lessees to pay the rent during the term. It is well settled by authority that in the case
As to the point made, that the agreement appears to have been executed under seal in the firm name, it is enough to say that all the partners sign individually as attesting witnesses, which necessarily implies that they were present assenting to and authorizing the execution; and nothing is better settled than that in such case the partnership is bound: Bond v. Aitkin, 6 W. & S. 165. Besides which the affidavit of defence did not aver that the execution by one partner had been without express authority from the others. Judgment affirmed.
Dissenting Opinion
— I dissent. I think the-true purpose of the contract was the building of the house and its occupancy.
