135 A. 639 | Pa. | 1926
Argued September 28, 1926. Plaintiff, Charles C. Shafer, landlord of certain improved real estate in Somerset, Pa., served notice, under the Act of March 31, 1905, P. L. 87, upon Matt Cascio, to vacate and deliver up possession of the premises within 30 days, "to wit, on or before the first day of November, 1924." The property not being surrendered, plaintiff commenced a proceeding under the Act of December 14, 1863, P. L. (1864) 1125, before a justice of the peace, — these proceedings, as indicated by the present record, being entitled "Chas. C. Shafer v. Matt Cascio." The justice rendered judgment for plaintiff, and on this judgment he recovered and still holds possession of the premises in controversy. "Adam G. Berkebile, assignee of Matt Cascio, lessor of the Shafer Block," and the party in actual possession when the justice rendered his *61 judgment, appealed to the Common Pleas of Somerset County, which tribunal reversed the justice and entered judgment for Berkebile, on a directed verdict against plaintiff; the latter thereupon filed the instant appeal.
As we shall show, this is peculiarly a case for the exercise of our broad powers under section 1 of the Act of June 16, 1836, P. L. (1835-6) 784, which authorizes us "to examine and correct all, and all manner of, errors of the justices, magistrates and courts of this Commonwealth," and "to reverse, modify or affirm" their "judgments and decrees or proceedings." Under this statute, and practically the same language in section 13 of the Act of May 22, 1722, 1 Sm. Laws 131, 140, as construed in Com. v. Beaumont, 4 Rawle 366, 367, on appeal, the Supreme Court may inquire into "the proceedings of all inferior tribunals, as regards their regularity and legality," and that we shall do in the present instance.
Plaintiff's statement of claim in the court below names Matt Cascio as defendant and Adam G. Berkebile as the "alleged assignee of the said Matt Cascio," and contains the following averments: That he, the plaintiff, owns the property in controversy; that the "defendant, [Cascio], by himself and his alleged assignee," had unjustly held possession thereof; that, prior to June 1, 1921, plaintiff had entered into a verbal agreement with Cascio (hereinafter referred to as an oral lease, or as the new oral lease), demising the premises to the latter "by the month and for an indeterminate term," at a named monthly rental; that, on September 1, 1922, another verbal agreement was entered into between them, raising the rental; that Cascio held possession of the property until September 30, 1924, when plaintiff caused the aforesaid notice to quit to be served on him; that "said defendant, notwithstanding the notice, . . . . . . refused to deliver up possession of the said demised premises and continued to occupy the same . . . . . . by himself and his alleged assignee . . . . . . until the bringing of this action [before a justice of the peace, wherein] . . . . . . said *62 premises were recovered, . . . . . . [and] from which decision Adam G. Berkebile appealed [to the court below]."
When the case later came to trial, it developed, through plaintiff's testimony and upon his cross-examination, that the premises in question were originally leased on July 19, 1919, by plaintiff to Jennie B. Huston and Samuel B. Huston, for the term of 10 years from August 1, 1919; that this lease contained a clause as follows: "The premises are not to be underlet . . . . . . or this lease transferred without lessor's consent, under penalty of instant forfeiture and right of reëntry for such breach." It further developed in the same way that, in March, 1920, through contract of lease from the Hustons to Cascio and also signed by the present plaintiff, the Hustons let part of the premises, with the consent of Shafer, to Cascio, for a term of three years beginning April 1, 1920, "with the privilege of renewing for five years additional." This latter contract named the Hustons as "lessors" and contained a clause as follows: "If lessors are dispossessed or make default in their lease, lessee [Cascio] agrees to take over their said lease provided same occurs during the term of this lease."
Plaintiff testified that the Hustons "defaulted in their lease"; that, in October and November, 1920, he was obliged to distrain against them for rent; that, "after the Hustons defaulted, Mr. Cascio became the tenant of the entire building"; that he paid the rent thereof for the month of December, 1920, and continued so to pay up to the time of the proceedings before the justice of the peace. These facts indicate that Cascio "took over" the Huston lease.
Plaintiff's contention that the Hustons were not in possession up to December first and that Cascio did not succeed to their possession, can have no force as against the facts themselves, appearing on this record. There was no evidence of a surrender by the Hustons. True, *63
after the Huston default and before Cascio took over the whole building, plaintiff collected rents from certain subtenants, but this must be assumed to have been done in relief of the Hustons, for the distraint against them in November could have been made only on the theory that they were still in possession at that time; again, the payment of the December rent for the entire building by Cascio shows, — in the absence of sufficient proof of an agreement for any other possession, — that he succeeded to the Huston possession. Thus, if the clause in the contract of March, 1920, — as to Cascio taking over the Huston lease in case of their default, — be viewed as inserted for the landlord's benefit alone, the evidence on the present record supports only one finding, namely, that plaintiff, the landlord, had permitted Cascio to take over the lease; on the other hand, if the clause in question be viewed as a mutual one, then, whether or not there was a surrender to the landlord by the Hustons, Cascio's right under the written agreement could not be affected thereby: Hessel v. Johnson,
Plaintiff claims, however, that, after the Huston default, and the levy because thereof, he prepared "a verbatim copy of the Hustons' lease," containing Cascio's name as lessee, and took this to the latter for the purpose of obtaining his signature to it, but that Cascio refused to sign. He then said to Cascio, "Let it be understood between us here that . . . . . . you are a tenant at will, and I can put you out any time I want to put you out," and Cascio said in reply, "I no sign it . . . . . . it is all right. . . . . . I pay you the lease." This was told at greater length in the testimony, but the above-quoted matter covers in substance all that was said at the time in question, which plaintiff claims constituted the new, oral, lease. *64
Under our statute of frauds (Act of March 21, 1772, 1 Sm. Laws 389), an express surrender of the Huston lease by Cascio would have to be in writing. There was no such writing, nor was there an actual physical surrender of the premises by Cascio. Whether the making of the alleged new oral lease, had it been proved, could have been viewed as a surrender by operation of law, and therefore not within the statute of frauds (see Whitley v. Gough, 2 Dyer 140b, 73 Eng. Reprint 306; Schieffelin v. Carpenter, 15 Wend. (N.Y.) 400, 405; Coe v. Hobby,
Cascio's replies to plaintiff's declaration as to the creation of a new term, were more in the nature of a refusal than otherwise; therefore plaintiff's evidence on this point was legally insufficient to show that Cascio had surrendered whatever rights he had under the Huston lease and had taken the property from month to month, as alleged in plaintiff's statement of claim. This being the case, we need not consider collateral evidence of incidents from which plaintiff would have inferences drawn to corroborate his contention as to the existence of a legally created agreement for a new term, except to say that, plaintiff having undertaken, as a direct witness for himself, to prove an alleged oral lease, as superseding the original written lease, and, having failed to state facts sufficient to take the case to the jury on that issue, he could not, by such inferential evidence, relieve the situation thus created, nor could he send the case to the jury by stating his construction of the net result of the conversation between him and Cascio concerning the alleged oral lease, as he in fact attempted to do at several stages in his testimony. To *65 substitute an oral lease for a written one protected by the statute of frauds, requires clear evidence, — if not clear, precise, and indubitable evidence; otherwise the statute would be vain indeed. Here the evidence in point, instead of clearly sustaining plaintiff's position, was properly susceptible of the opposite construction.
We agree with the court below that when the Hustons defaulted in their lease and Cascio was allowed by plaintiff to take possession of the entire property, paying the rent therefor, he was, by virtue of the contract of March, 1920, and all the facts in the case, in the position of a substituted lessee under the terms of the original demise to the Hustons, and possessed of the term named in that lease. Furthermore, there being no evidence sufficient to prove a new demise to Cascio, and nothing in the case to show either a physical "surrender of the premises or surrender of the [Huston] lease" by Cascio, and his term, as substituted tenant under that instrument, being for more than three years, again we agree with the court below that, under the statute of frauds and the decisions construing it, the testimony relied on by plaintiff to show that, despite the documentary contract to the contrary, Cascio was only a tenant at will, "cannot be permitted to prevail over the lease in writing."
Here we have the case of a substituted tenant entitled to possession under the original written lease, for a term of more than three years; a futile attempt to show its cancellation by the making of a new oral lease creating a term from month to month; a notice to quit, under the Act of 1905, based on the assumption of the existence of a tenancy at will or from month to month; a proceeding before a justice of the peace on this basis, and judgment in the landlord's favor, appealed to the common pleas by Berkebile, — one who was in actual possession, claiming to be the transferee of the substituted tenant; a reversal by the court below on the ground that the term of the written lease still continued and Berkebile *66 was a lawful transferee thereof from the substituted tenant, Cascio, — therefore the justice erred in deciding for plaintiff. To this point, with the exception of the holding as to the lawfulness of Berkebile's possession as transferee of Cascio, the court below was undoubtedly correct; but the question is, whether that tribunal was right in entering a possessory judgment for Berkebile, on the theory that he was the lawful assignee, from Cascio, of the Huston lease and of the latter's unexpired term thereunder. If that question is answered in the negative, and it should be held that Berkebile was not a lawful transferee, then the question arises, Did the justice, in the first instance, and subsequently the court below on appeal, have jurisdiction of the case? If not, what are the results on this appeal?
Plaintiff contends that, even if his argument that the written lease had been superseded should not prevail, and it should be held that the lease continued, he is nevertheless entitled to judgment, because the instrument in question contained the clause hereinbefore quoted, forbidding its transfer without lessor's consent, "under penalty of instant forfeiture and right of reëntry for such breach," and Cascio, by transferring to Berkebile, had incurred the penalty thus agreed on. As to this, the court below decided that the transfer from Cascio to Berkebile was no breach of the clause in question because "the covenant by the Hustons not to transfer [their lease] without approval in writing by plaintiff, was a personal one [which] did . . . . . . not bind the subsequent assignee," citing Lowry v. Atlantic Coal Co.,
The agreement against transfer is not in the same category with warrants to confess judgment, discussed in Stewart v. Jackson,
The conclusion just reached does not mean, however, that, even should we reverse the possessory judgment entered by the court below for Berkebile, the judgment for plaintiff, entered by the justice, should be affirmed. *68 We can adjudge only the case brought before the justice of the peace, and there can be no recovery on a cause of action not within the jurisdiction of the justice under the statutes invoked by plaintiff. Here, as the record shows, the case pleaded by plaintiff was not established and the case which he would substitute, to sustain the justice's judgment in his favor, was neither pleaded by him nor was it within the jurisdiction of the justice.
In the first place, the proceeding before the justice of the peace was, so far as the present record indicates, against Cascio alone; while the proceeding in the common pleas was against Cascio and Berkebile. In Stehley v. Harp, 5 S. R. 544, this court reversed a judgment, entered by the common pleas on an appeal from a justice of the peace, where, in the original suit, there was only one plaintiff, but at the trial in the common pleas, there were two holding to the general principle, stated in the syllabus of that case, "It is error if, on appeal from a magistrate, the cause tried is different from that in which the appeal is entered." But we shall not stand on this last-mentioned decision, because in the present case Berkebile, whether or not originally named as a defendant, appears to have been accepted by plaintiff as his opponent; though this fact in itself will not give jurisdiction, since jurisdiction over the substance of the case did not exist.
We shall treat the case before us in its substance, and look at the original proceeding as though it had been instituted against both Cascio and Berkebile. Thus viewing the record, there is an actual departure from the substance of the case brought in the justice's court. In Linton v. Vogel,
Both the Acts of 1863 and 1905, under which the jurisdiction of the justice of the peace was invoked, call for notices to quit before institution of the proceedings thereby afforded; they contemplate only cases where such notices are both required and given prior to the termination of a tenancy, and, as to the Act of 1863, this is expressly so ruled in Rich v. Keyser,
Had plaintiff instituted against Cascio an appropriate proceeding, in the proper tribunal, to enforce his right of reëntry because of Cascio's alleged breach of the provision against transfer of the lease under which he held, and had a judgment been secured against Cascio on this basis, then the latter and all those claiming under him, including Berkebile, might properly have been ousted from possession. Again, after Cascio turned over possession to Berkebile, plaintiff might have proceeded by ejectment directly against the latter; and if Berkebile had then pleaded his alleged right, as an assignee of the Huston lease, to possession of the demised premises, the question of forfeiture and right of reëntry, which plaintiff now seeks to bring into this controversy, would have arisen. But on the pleadings and proofs before us, these questions cannot be made to control the case; for, as already shown, they were not present in the justice's court, and, if they had been, the justice would have had no jurisdiction under the statutes invoked by plaintiff. We conclude that, since neither the justice of the peace *71 nor the court below on appeal had jurisdiction of the case as presented, the proper course for the latter tribunal would have been to order the dismissal of the whole proceeding, instead of either affirming the judgment of the justice for plaintiff or entering judgment for Berkebile.
Dismissal of the proceedings on the theory just stated means, of course, the setting aside of the judgment of the court below for Berkebile, but it means also a like fate for the judgment of the justice in favor of plaintiff, under which Berkebile was dispossessed; and, ordinarily, when a judgment under which possession has been obtained is disturbed on appeal, the dispossessed party may have a writ of restitution. Such a writ, however, is not always of right; for instance, in Alden v. Lee, 1 Yeates 159, 160, 207, 208, a possessory proceeding, judgment in favor of the landlord was reversed by us because he had not pursued "the proper forms pointed out by the course of the common law"; but, notwithstanding the fact that the proceedings wherein the landlord had obtained possession were set aside, this court refused to grant a writ of restitution, saying that, under all the circumstances, the defendant was not entitled to the writ and, in the exercise of our discretion, it would not be awarded. In McGee v. Fessler,
It is possible that in ejectment other evidence than that here appearing might be produced, — as, for instance, consent by plaintiff to the assignment, — which *73 would give Berkebile the privilege of possession, and whatever we may decide here cannot prejudice his right to produce evidence of that kind in a proceeding where it may be relevant; but the fact that other proofs may be available at another time, can have no bearing on this case, where the evidence before us plainly indicates a forfeiture to plaintiff of the very lease under which Berkebile claims to hold the property in controversy.
Another point to be considered is this: The court below not only entered a possessory judgment for Berkebile, but also included therein substantial damages, to cover the value of the term of which he had been dispossessed; whereas, on the evidence here produced, Berkebile's claim of possession, not being rightful, could have no real value. It is unnecessary to discuss this point, however, because the case should have been dismissed for want of facts to bring it within the jurisdiction conferred by the acts invoked. For the reasons given, we shall not enter judgment for plaintiff; no more shall we affirm the monetary or possessory judgment of the court below in favor of Berkebile, though, as we shall explain in the next paragraph, the latter is entitled to a judgment for costs.
There is no way of telling from the present record what evidence was produced before the justice of the peace, so we have assumed it was the same as given in the common pleas; but, on the proofs there adduced, plaintiff himself showed a case not within the jurisdiction of the justice under the acts invoked for that purpose. This being the case, the justice, in the first instance, instead of entering judgment for plaintiff, should have dismissed the proceedings, and, on his failure so to do, the court below should have pursued that course and dismissed the proceedings ab initio, but without a writ of restitution. Since, however, plaintiff's statement of claim pleaded a cause of action within the jurisdiction of the justice and the court below, on which issue was joined in the latter tribunal by Berkebile, as defendant, *74 and, since plaintiff failed to prove the case thus pleaded, his accepted opponent is entitled to a judgment for costs. In other words, although accepted by plaintiff as his opponent, Berkebile could not have successfully demurred to plaintiff's case as originally averred by him; hence he had to answer, and, being obliged to answer, he is entitled to costs.
The judgment in favor of Adam G. Berkebile is affirmed for costs only; aside from this limited affirmance, the judgment for him in the court below and that entered by the justice of the peace in favor of plaintiff are both set aside and the whole proceeding dismissed ab initio.