265 Pa. 487 | Pa. | 1920
Opinion by
We do not understand it to be disputed that the appellants had a status as legal representatives of the original lessors to begin the proceeding out of which this controversy arises. By written lease dated 28th September, 1914, the original parties demised to M. J. Boyle for and during the term of five years, beginning on the first day of October following, a certain building situate in the Borough of Johnstown, Cambria County, known as the Nemo Theatre, for a total rental of $26,000, in monthly installments of $433.33 1-3 on the last day of October, 1914, and a like sum on the last day of each and every month thereafter. By the terms of the lease, in addition to the above rental the lessors
Error assigned is the decree itself — the opening of the judgment and the vacation of the writ of habere facias with an award of possession to defendants. The latter question has been solved by the delay in not having it pressed to an earlier judicial determination. The full term of the lease of the premises expired 5th September, 1919, less than two months after the decree was entered, and the plaintiffs in error are now and have been ever since in possession. Nothing is to be gained by a discussion of the question raised, especially is this so since the award of possession under the order was immediately followed by a supersedeas, and the possession originally awarded to the plaintiffs under the writ was not thereafter interrupted except by the expiration of the term. As to the other question raised, — the opening of the judgment, — the findings by the court furnish ample justification for the decree. These are among the findings — “The confession of judgment was based upon two' alleged grounds: first, that of nonpayment of rent; and second, failure to calculate and make settlement of any profits according to the terms of the lease. ......In order to place himself in position to forfeit the lease on account of nonpayment of rent, it was necessary that a demand be made upon the premises for the exact amount of the rent due upon the date it fell due, and nowhere does it positively appear in the testimony that such action was taken......As to the failure of Mr.. Boyle to make monthly calculations and settlements, it may be observed that the provisions of the grant or lease covering this matter are incongruous and conflicting, and such a course of dealing had obtained for some length of time, sufficiently long at least to make it unjust and inequitable for the plaintiff to declare a
To the extent that the decree calls for the opening of the judgment in the amicable action, it is affirmed; in so far as it orders a restitution of the property to the plaintiffs, the judgment is vacated and set aside, the costs in both proceedings to abide the final result upon the opening of the judgment.