Jennings v. McComb

| Pa. | May 10, 1886

Mr. Justice Trunkey

delivered the opinion of the court, May 10th, 1886.

The plaintiffs aver in their declaration that on March 10th, 1875, they agreed with the defendant that he should have and occupy the building No. 702 Sansom Street, for the term of three years from April 1st, 1875, and in consideration thereof the defendant agreed to pay to the plaintiffs, monthly, on the first day of each month in advance, the annual rent of one thousand dollars for the first year, twelve hundred dollars for the second year, and one thousand dollars for the third year. This action is to recover the rent for the last ten months ending on April 1st, 1878.

At the trial, the plaintiffs called Brolasky, who testified that he was employed by the plaintiffs and made a lease in writing of the premises to the defendant. The written lease as to the date of the contract, the term, the rent and payment thereof, accords with the averments in the declaration. In the lease Brolasky styled himself agent, without naming his principals, and signed as agent for Mrs. McComb, affixing a seal to her name. The defendant signed and sealed the lease.

There is no evidence that Brolasky had authority in writing to execute a lease. Nor did the plaintiff accept or ratify the lease in writing. An oral lease for a term of three years is valid only where it commences from the time it is made ; the Statute of Frauds declares that all parol leases exceeding the term of three years from the making thereof shall have the force and effect of estates at will only: Whiting & Co. v. Pittsburgh Opera House Co., 88 Pa. St., 100; Stover v. Cadwallader, 2 Pennyp., 117" court="Pa." date_filed="1882-05-08" href="https://app.midpage.ai/document/stover-v-cadwallader-6309679?utm_source=webapp" opinion_id="6309679">2 Penny., 117. Therefore, the tenant under the lease made on March 10th, 1875, for the term of three years from April 1st, 1875, held only an estate at will. No certain term was vested in him.

In many cases when a deed contains coyenants on both sides, the covenants on one side being in consideration of the covenants on the other siete, the party executing the deed -may be bound, although the other party has not executed it. A covenantee in an ordinary indenture, who is a party to it, though he did not seal it, may sue the covenantor who executed the deed; and it makes no difference that- the covenants of -the defendant are therein stated to be in consideration of- those of the covenantee: Leake on Cont., 141; Whar. on Cont. § 688. A contract under seal may be so defectively executed by one party that it could not be enforced against him, yet if it be performed, upon breach by the other party of his covenant he is liable in covenant: School Directors v. McBride, 22 Pa. St., 215. A plaintiff may sustain covenant on a sealed instrument, although it be so defectively executed on his part, that only assumpsit can-be maintained against him: 1 Grant, 230" court="Pa." date_filed="1855-10-22" href="https://app.midpage.ai/document/poor-directors-v-mfadden-6315093?utm_source=webapp" opinion_id="6315093">1 Grant, 230. Generally, when a party who has not put his name to a written contract, accepts it when signed and sealed by the other, it binds him the same as if he had executed it. The principle that contracts must be mutual, must bind both parties or neither, does not mean that in every .case each party must have the same remedy for a breach by the other. Covenant may lie against one, where only assumpsit can, be maintained against the other: Grove v. Hodges, 55 Pa. St., 504.

But where the covenants made by the .party first executing the deed are dependent on covenants to be executed' by-the other party, then the first cannot be enforced until the performance of the correlative covenants, or until that performance is undertaken by the execution of the deed-by the other party.' Thus, with respect to leases by indenture, such covenants as to.repair and pay rent during the term, are- not obligatory if the lessor does' not execute -the deed, because the interest has-not been created to which such covenants are annexed, and during which only they operate; the foundation of the covenant failing the covenant fails also. Unless there be a, term a covenant to repair or pay rent is void. If no lease, there is no-covenant: Pitman v. Woodbury, 3 Exch., 11. A defendant, for a certain sum to be paid to the commissioners of an inland navigation company, stipulated for the enjoyment of the tolls for a year. The commissioners did not execute the deed as directed by Acts of Parliament; but the defendant signed and sealed the deed. The payment of the rent, as it was called, was to be made in consideration of a legal right to enjoy the incorporeal hereditament for a year, which right would have vested had the commissioners executed the deed as directed by law. In reality the defendant had occupied and enjoyed the tolls under a license terminable at any moment; but he had been permitted to enjoy them for the year. Therefore, h.e never had the interest for which he covenanted or contracted to make the payment, namely, a certain estate or right in the tolls for one year; the consideration for the covenant wholly failed. It was held that covenant would not lie, and that the defendant's liability must be enforced in a different action: Swartman v. Ambler, 8 Exch., 72.

So, in this case, as no certain term was vested in the defendant, the consideration for his covenant failed. He is liable in assumpsit for the rental value of the premises he occupied. The writing was admissible on the question of, value — it was not offered in evidence as the foundation of the action. The-only objection to it as evidence was, that it is sealed. At present there is no occasion to consider whether the case would be different, had the lease been for a term not exceeding three years from the making thereof.

Judgment affirmed.