68 Pa. Super. 133 | Pa. Super. Ct. | 1917
Opinion by
The lease in this case was for a term of seventeen months, beginning December 1, 1913. The appellee, the tenant, vacated the premises on January 30, 1915, be
The general rule, applying to houses or apartments for rent, is that in the absence of an express agreement there is no implied warranty or representation arising out of the relation of landlord and tenant that the demised premises are fit for the purposes for which they are rented, and that they are tenantable or shall continue so. The rule is caveat emptor as to such transactions: Davis v. Pierce, 52 Pa. Superior Ct. 615. The lease provided that the premises was rented “in its present condition” and the tenant covenanted to “maintain and keep the premises during the term in good repair, including water pipes, their connections and all plumbing fixtures; also the cellar, yard, vault and out-house, free of rubbish, and in such condition as the Board of Health may require.” The representations relied upon to overcome these clauses in the lease, and the law with respect tO' the relationship of landlord and tenant, should be such as to leave in the mind of the court the fixed impression that deceit was intended and consummated. The lease is clear and definite in its terms. It required the tenant to repair and to accept the property in its present condition. It indicated strongly that “his eyes should be his market.” The burden was on the plaintiff to present proof clear and convincing in character that these written statements were nullified because of the conditions now complained of. To contradict or vary the terms of a written instrument by parol evidence, following an allegation of fraud, “the evidence relied upon, taken as a whole, must be so persuasive in character, so free from self-contradiction or material internal variances, and so intrinsically probable that the judicial mind can rest thereon with a conviction that the ends of justice would
With regard to the clogging up of the drains, there was absolutely no evidence that any such condition existed before the lease was made. When the trouble was investigated it was found that paper and rags had been stuffed in the pipes. The appellee was required, under the lease, to remove this obstruction. Aside from all these circumstances, the appellee lived in the property for upwards of twelve months, paid the rent, and left the premises four or five months short of his term; he cannot at this late date give as his reason for leaving alleged fraudulent representations as to the condition of the premises. It is his duty, if he wishes to disaffirm the contract, to do so immediately and surrender the premises. But he cannot occupy and enjoy the possession and pay the rent- for a period of time, and then set up as a defense to an action for rent or resist an action of replevin for the forcible col
The motion for judgment n. o. v. should have been sustained. Judgment reversed and it is ordered that the record be remitted to the court below with direction to enter judgment for the defendant on the motion for judgment n. o. v.