200 Pa. 372 | Pa. | 1901
Opinion by
The single question before the court below was, the alleged default of the Electric Light, Heat & Power Company of Gettysburg, as lessee in a lease from the Gettysburg Electric Railway Company, executed October 17,1893. If there was default, the appellants were clearly entitled to a decree for the foreclosure of the mortgage of the former company of the same
One of the lessee’s covenants was, that it would “ keep and maintain all of said property hereby leased to it in good repair and at the termination of this lease restore the same to the said party of the first part in good condition.” On September 10, 1894, the power house included in the lease was destroyed by fire, and the duty of the lessee, under the foregoing covenant, was to restore it: Hoy v. Holt, 91 Pa. 88. This seems to have been the view of the court below; but the lessee did not rebuild, and, under the twelfth finding of fact, was held not to have been in default. That finding is: “ The books of the railway company would seem to show the payment by said company of the sum of $981.64 on the power house after the fire. But this payment was voluntarily made by the railway company so as quickly and at once to aid in repairing the loss, with no intention of insisting on the severity of its contract of lease with the light company or of ever claiming their portion of payment toward the rebuilding of the said power house as a forfeiture by the light company under its lease and mortgage. The railway company never made any demand on the light company for the same but it remains for their successors in title to do so. The railway company did pretend at least to keep an account with the light company but the payment for above repairs were never charged against the light company. Their right so to do they intended to and did waive.” The finding should have been not merely that the books “ would seem to show the payment by said company of the sum of $981.64 on the power house after the fire, ” but that this sum had been actually paid by the railway company to do what the light company had failed to do. Failure to perform this covenant
In the twenty-first finding of fact, the court found that “ from the books of the Gettysburg Electric Railway Company, in account kept by the said company with the Electric Light,Heat & Power Company of Gettysburg, it would seem upon its face, that the light company was indebted to the railway company September 20,1896, in the sum of $5,672.98. But these books were so carelessly if not fraudulently kept by the railway company as to furnish us with no sufficiently reliable data
Out of its revenues, according to the twenty-third finding, the light company spent $1,000 in betterments and improvements. This was in direct violation of its covenants as to the disposition of its receipts, and even if these improvements were-all reasonable, which is one of the excuses given by this court for this default, it cannot be found in the lease that any such use could be made of the revenue; but, on the contrary, it was a diversion of the money from the specific purposes to which the light company had agreed to apply it. That this diversion was made with “ the approval and assent of the railway company ” we are compelled to again say, cannot be found in the evidence.
The light company was to pay all taxes on the leased property ; but the uncontradicted testimony is that it did not do so. They were paid at times by tbe railway company.
We need not dwell longer on the foregoing defaults, nor consider the others to which appellants call our attention. Such
The decree of the court below is reversed, and it is now adjudged and decreed that the Electric Light, Heat & Power Company of Gettysburg, the mortgagee named in the mortgage of October 17, 1893, and'tbe Keystone Electric Light, Heat & Power Company, its successor in title, are in default under the terms and conditions thereof, and the Harrisburg Trust Company, as the substituted trustee in the said mortgage, be and is hereby authorized and directed to make sale of the property, rights, privileges and franchises named and described in said mortgage, at such times and in such manner and upon such terms as the court below may direct and fix, to which the record is remitted for the enforcement of this decree, the costs of this appeal to be paid by the appellees.