39 Pa. Super. 580 | Pa. Super. Ct. | 1909
Opinion by
This appeal arose out of a proceeding under the Act of December 14, 1863, P. L. (1864) 1125, to recover possession of leased premises at the determination of the lease. As only a thirty days’ notice to quit was given, it was incumbent on the plaintiff to bring herself within the provisions of the Act of March 31,1905, P. L. 87, by showing that the lease under which the defendant held was for “ a time less than one year or by the month or for an indeterminate time.” The defendant went into possession about June 1, 1904, admittedly under an oral agreement to pay $20.00 a month rent, which was paid as it accrued. At the expiration of seven months the plaintiff raised the rent to $25.00 a month, which the defendant also paid up to January, 1908. In the meantime, that is in October, 1907, the plaintiff raised the rent to $35.00 a month. The defendant refused to pay the incréase, whereupon the plaintiff gave thirty days’ notice to vacate, and these proceedings followed. The above facts are undisputed, but there is a very serious conflict of evidence as to what occurred and was said at the beginning of the tenancy relative to the period the defendant was to occupy or have the right to occupy the premises. According to the plaintiff’s testimony nothing was said upon the subject, the agreement being simply a letting for $20.00 a month without anything being said as to the term. If that was the whole agreement the case would be within the principle of Hollis v.
After these interviews, but before June 1, 1904, when it was contemplated the tenancy would begin, the defendant moved some books into the back part of the store, having first asked and obtained the special permission of the plaintiff to do so, and the latter still remaining in the actual possession of the premises. The plaintiff gave a different version, but it was for the jury to decide between them, and therefore it is sufficient for present purposes to say that the jury could well find from the former’s testimony as to the circumstances under which this permission was given and these goods were put on the premises, that this act was not intended as a delivery and a taking of possession’ under the lease concerning which they had been negotiating.
At a later interview, the defendant asked for a lease, evidently meaning a written lease, and the plaintiff demurred to giving one. As the occurrences at this interview are of the highest importance in determining the question in dispute, we quote quite extensively from the defendant’s testimony: “I had my books there then. I said ‘ I’ll move every stick back to-morrow; I won’t move into your house without a yearly rentage or a lease.’ ‘Oh,’ she said, ‘don’t do that, don’t do that; I’ll give you one,’ in the presence of my niece. Q. Your niece who is she? A. Miss Tillie Zeitz. Q. You asked for a yearly lease? A. A lease. I said ‘I’ll not move into anybody’s house without a lease; I never move without a lease.’ Q. When you asked for the yearly lease what did she say? A. She said she had not been giving them, they were no good any how. Q. Tell us what further was said on this occasion about this. A. That
There is next to be considered what occurred, according to the defendant’s testimony, at the next interview between the parties. She testified that she again demanded a written lease,
If there had been no instructions given upon this question excepting those which were given in answer to the plaintiff's third point it might be argued with considerable force that the jury would naturally understand the quotation from the opinion in Walter v. Transue as ruling the question in the defendant's favor as a matter of law. But when the charge of the court and the answers to the other points are read as a whole it is apparent we think that the jury could not have taken that meaning from the answer to the third point. The court told the jury repeatedly that the question whether this was a tenancy by the month or for an indeterminate period or from year to year was to be decided by them from the evidence in the case. Taking it as a whole the case was one where the doctrine of Maynes v. Atwater and of the many other cases in the same line was peculiarly applicable.
All the assignments of error are overruled and the judgment is affirmed.