52 Pa. 149 | Pa. | 1866
The opinion of the court was delivered, August 2d 1866, by
The 1st assignment of error would be of no importance were it sustained, for the language of the judge, to which exception is taken, could not have affected the verdict. Had the plaintiff’s estate in the demised premises been declared a fee simple, the result of the trial must have been the same. It was, however, strictly accurate for the judge to say that the plaintiff’s interest in the Military Hall did not extend beyond an estate for her natural life. The contingent power of sale given to the executors of her husband’s will did not enlarge her estate in the lands and convert that which, without the power, is expressly a life estate into a greater interest.
And the 2d assignment of error has no better foundation. The plaintiff builds her right to maintain this action upon the assumption that the defendants are in possession as her lessees under the agreement without date, but proved to have been made on the 2d of March 1863. By that she agreed to rent the property to Mr. Bergner for five years, commencing March 1st '1863, at the rate of $1800 per year, with the privilege of a ten years’ lease at the same rent, provided all improvements, repairs and water rents, with extra insurance, were paid and done by the lessee. The agreement also stipulated that the rent should be paid on the first day of each month, and that Bergner should bring the first two stories out to the line which the Mercantile Library building is on, and that he should give a written agreement for faithful performance of all “contained therein;” that is, of the obligations imposed on the lessee. It is for a failure thus to bring out the building demised, and to give an agreement for faithful performance, that this action is brought. The defendants insist that they hold as assignees of one C. Heishley, who had a lease at the same rent extending until June 13th 1870, assigned by Heishley to them with the assent of the plaintiff.
It is not necessary now to decide which of the parties is right. Conceding for the purposes of this case that the assumption of the plaintiff is well made, that the agreement of March -1863 is itself a lease, and that the defendants are in under it, still no time is fixed for bringing the first two stories out to the line of the Mercantile Library building. Doubtless it must be construed as imposing an obligation to make the improvement at some time
It has been argued, however, that the acts and declarations of the defendants, as proved by the evidence, amount to an avowal of a purpose not to make the extension at any time. Suppose this be conceded, it does not help the plaintiff nor show any error in the record. It is not easy to see how such an avowal can amount to a breach of the contract. The defendants may repent before the time shall come when they are bound to do the work; and if they do not, the plaintiff will not be injured until that time. It certainly would be a novelty to allow a promissee to maintain an action for the non-payment of a debt or the non-performance of any contract before the time stipulated for the payment or performance, merely because the promissor had declared a purpose not to pay or perform. Besides, upon this subject, the court gave no instruction. None appears to have been asked, and no assignment of error raises any question respecting the effect of the defendants’ conduct or avowals.
As this part of the case was pressed on the argument, it may be well to look at it more minutely. It was in evidence and uncontradicted that in March 1863, shortly after the agreement to lease to Bergner was made, the defendants offered to give a bond in accordance with the agreement. The bond was not accepted,
There is no error in the record.
Judgment affirmed.