57 Pa. Super. 269 | Pa. Super. Ct. | 1914
Opinion by
The plaintiff brought this action to recover a balance alleged to be due him from the defendant upon a number of contracts for painting buildings. The defendant interposed a number of defenses, among them a counterclaim for rent of a house which the plaintiff had for a number of months occupied under a written lease. The plaintiff recovered a verdict and judgment in the court below and the defendant appeals.
The claim of the defendant for the rental of the building which the plaintiff had occupied was founded upon a written lease, which the plaintiff admitted that he had signed and with regard to which he distinctly testified that the defendant would not have permitted him to enter into possession of the house without having first signed said lease. The lease, called for the payment of rental at a distinctly specified rate per month. There was no dispute as to the time during which the plaintiff had occupied the house. There was no evidence produced tending to establish a contemporaneous parol agreement to vary, change or modify the written contract. The learned counsel for the appellee candidly concede in their brief that: “There was no attempt to reform the lease. The controversy was whether the rent was paid.” The learned judge who tried the cause in the court below, in the hurry and confusion of the trial, lost sight of the only issue upon , which the jury ought to have been permitted to pass, under the written contract and the evidence, as to this particular claim. In submitting to the jury this claim of the defendant for rent under the lease, he used this language: “On the item of rent, Mr. Knoller lived in that house, and he signed a written lease, which I presume will be sent out with you. I understood Mr. Knoller to claim that he was not to pay any rent. The written lease would negative that idea, and I think that the defendant is entitled to rent for the time that Mr. Knoller lived in the defendant’s house and for which rent remains un
The first specification of error refers to alleged improper language used by counsel for plaintiff in the argument of the case to the jury. There may be a question whether under the evidence in the case the language used was justifiable, but as the judgment is to be reversed on other grounds we do not deem it necessary to pass upon that question. The case was submitted to the jury in a charge which, except in that part which has been considered in disposing of the second assignment of error, was full, fair and adequate, and the third specification of error is without merit.
The judgment is reversed and a new venire awarded.