235 Pa. 341 | Pa. | 1912
Opinion by
On August 1, 1911, George Cuthbert Gillespie caused a confessed judgment in an amicable action of ejectment to be entered against the defendant, Hyman Elfman. Thereupon Elfman filed a petition averring that the written lease upon which the action rested had been annulled and superseded by an oral letting for the term of three years at an increased rental; and rules to open and to strike off the judgment were allowed upon this petition. The plaintiff filed an answer in which he denied that the written lease had been annulled or that any new contract had been substituted therefor, and averred that Elfman had regularly paid his monthly instalments of rent to him, Gillespie, as landlord under the original lease. Subsequently a petition was filed by Elizabeth C. Gillespie, Anna G. Boyd and George Cuthbert Gillespie, averring that they were the owners of the premises in question; that while the original lease had been executed in the name of William G. Haines, Agent, the latter acted as agent for George Cuthbert Gillespie who was then acting
From the record as presented it appears that on January 31, 1910, William J. Haines, Agent, without expressly disclosing his principals, leased the premises 601-3 Market street to the defendant for one month from February 1,1910, at a rental of $300 payable in advance on the first day of “each' and every month during said term or any renewal thereof;” that the lease provided, inter alia, that either party could determine the term or any renewal thereof upon five days’ written notice prior to the expiration of any month; that the defendant entered into possession under this lease and paid his rent to Haines for the months of February and March, 1910; that on April 1,1910, George Guthbert Gillespie collected the $300 rent and gave a receipt for the same, as he did in the month of May; that May 23,1910, Gillespie called on the defendant, in his own behalf and as agent in fact for his sisters, and notified Elfman that he would have to pay more rent if he desired to remain in possession of the premises; that thereafter the defendant paid rent at the rate of $350 per month, drawing his checks directly to Mr. Gillespie; that on June 6, 1910, Haines, Agent, served a formal notice upon Elfman to quit on June 30, 1911.
. The defendant claims that Gillespie expressly agreed in consideration of the increased rental to lease the entire premises to him for three years; Gillespie denies this and claims that there was no change in the written lease
A modification of a contract of letting in the single particular of the amount of rent to be paid, may be made without varying the other conditions contained in the lease; such a change is not of necessity, either in law or in fact, an abandonment by either party of any of his other rights under the contract as drawn. Of course the parties may at the time agree upon a change in the term, as the appellant claims was done in this case, but the court has found against him on that contention, and after a review of the entire record we see no sufficient grounds to change the finding. While the final notice to quit was not signed by Haines, the agent named in the lease, it was given by Gillespie, to whom the defendant had attorned and of whose rights he was fully informed; under the circumstances this was sufficient. We do not see any merit in the contention that the notice should have been
All of the issues of fact raised on the rule to amend were involved in the proceedings to open and strike off the judgment, and could properly be treated as adjudicated. The amendment introduced no new cause of action, and it was within the provisions of the Act of May 4, 1852, P. L. 574: Kaylor v. Shaffner, 24 Pa. 489; Walthour v. Spangler, 31 Pa. 523; Booth v. Dorsey, 202 Pa. 381, 385; Power v. Grogan, 232 Pa. 387, 397. By the course pursued all possible parties in interest were brought upon the record, and, whether or not the amendment was necessary, we conclude that the court below fell into no reversible error in allowing it.
Had the defendant submitted requests for definite findings of fact and conclusions of law it would have been the duty of the court below to answer them, or the court could have stated such findings and conclusions of its own accord. If this course had been pusued it would have greatly simplified and facilitated our labors on review, and we strongly recommend it as good practice in future proceedings to open judgments.
The assignments are overruled and the judgment is affirmed.