Opinion
March 19, 1963.
April 18, 1963.
Landlord and Tenant — Surrender — Acceptance — Intention of lessor — Question of fact for jury — Acts of landlord in taking possession, repairing, and advertising — Judgment for amount unpaid under acceleration clause — Correction of assessment by direction of court — Allowance for period covered by new lease — Increased rentals under new lease resulting from substantial repairs to property — Opening judgment — Discretion of court below — Appellate review.
1. The burden of showing an acceptance of a surrender is on the lessee, and the matter is primarily a question of the landlord's intention.
2. Acceptance of a surrender is usually a question of fact for the jury, but the evidence may be such as to make it one of law for the court.
3. Where a landlord does not accept a surrender, his acts in taking possession, repairing, and advertising the property for rent are all in the interest and for the benefit of the tenant and do not discharge the tenant from his covenant to pay the rent.
4. Where it appeared that the parties entered into a lease which provided for a term from November 1, 1958, to October 31, 1961, at a rental of $150 a month, with a provision for an automatic extension on a year to year basis unless sixty days' notice was given by either party prior to the expiration of the original three-year period; that on September 7, 1961, defendant-lessee sent a notice of termination to plaintiff-lessor's agent; that by letter dated September 11, plaintiff advised defendant that the notice of termination was refused as being too late, and further stated that defendant would not be released from his obligation completely, and that plaintiff would accept a settlement for rent covering the months of November and December of 1961; that defendant never accepted plaintiff's offer, never paid any rent after the October, 1961, rental, and, on October 30, 1961, moved out of the property; and that thereafter plaintiff made considerable repairs to the premises, costing several thousand dollars, and by so doing obtained a new tenant under a lease which commenced April 1, 1962, for a rental of $300 a month; it was Held that there was no evidence of an intention on the part of the lessor to accept lessee's surrender.
5. Where it appeared that judgment was entered, by virtue of the power of attorney in the lease, for one year's rental, in the sum of $1,800, to which was added a collection fee of five per cent and interest, and from which was subtracted a sum representing mitigation of damages, in the amount of $875, leaving a balance of $1,117; and that the lease contained an acceleration clause; it was Held that defendant's contention, that judgment may not be entered for unliquidated damages, was without merit.
6. Where it appeared that the court below, in dismissing defendant's petition to open the judgment, directed that the assessment of damages be amended so that defendant was not assessed for the rentals due from April 1, 1962, to October 31, 1962, and plaintiff amended the assessment so as to cover a rental at $150 a month for five months from November, 1961 to March, 1962, inclusive, or a total of $750, to which were added interest and attorney's fee; it was Held that defendant's contention that he should be given credit for the full amount of the rentals which plaintiff received for the period from April 1, 1962 to October 31, 1962, or an amount of approximately $2,100, which then would relieve defendant of all liability under his lease, was without merit, since it ignored the fact that the landlord in order to obtain the increased monthly rental had had to incur substantial expenses to put the property in the necessary condition.
7. Defendant's contention that the judgment was void was Held, in the circumstances, to be without merit.
8. A petition to open a judgment is addressed to the equitable powers of the court, and, if doubt exists as to the real justice and equity of the case, the court below should not be reversed on appeal in the absence of an abuse of discretion.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 71, Oct. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-5216, in case of Wilson Laundry Company v. Robert M. Joos, individually and trading as Joos Equipment Co. Order affirmed.
Proceeding upon petition of defendant and rule to show cause why judgment entered by confession under a written lease should not be opened.
Order entered refusing to open judgment, opinion by QUINLAN, JR., J. Defendant appealed.
Roland J. Christy, for appellant.
Harry J.J. Bellwoar, III, with him Bellwoar, Rich and Mankas, for appellee.
Argued March 19, 1963.
This is an appeal from the refusal of the court below to open a judgment entered against defendant under a warrant of attorney in a lease.
In July 1958 the defendant entered into a lease, which provided for a term from November 1, 1958 to October 31, 1961, with a provision for an automatic extension on a year to year basis unless 60 days notice was given by either party prior to the expiration of the original three-year period. On September 7, 1961 the defendant sent a notice of termination to the plaintiff-landlord's agent. By letter dated September 11 the plaintiff advised the tenant that the notice of termination was refused as being submitted too late and in such letter stated "In view of the above we will not release you from your legal obligation completely. We feel that it will take some time in which to obtain another tenant; in order that you or we will not be inconvenienced too greatly we will accept a settlement rent collection covering the months of November and December of 1961." The evidence clearly revealed that the defendant never accepted the plaintiff's offer and never paid any rent after the October 1961 rental. At the end of the original term, on October 30, 1961 the defendant delivered the keys to the plaintiff and moved out of the property.
Thereafter the plaintiff made considerable repairs to the premises costing several thousand dollars and by so doing obtained a new tenant for the property for a lease which commenced April 1, 1962 and for a rental of $300.00 a month, the original rental to the defendant having been at the rate of $150.00 a month.
On June 12, 1962 judgment was entered by virtue of the power of attorney in the lease for one year's rental in the sum of $1,800.00, to which was added a collection fee of five per cent and interest, making a total amount of $1,992.00, and from which was subtracted a sum representing mitigation of damages of $875.00, leaving a balance for which judgment was entered of $1,117.00. The court, in dismissing the defendant's petition to open the judgment, was of the opinion that the plaintiff did not give the defendant proper credit for the amount of the rentals which the plaintiff received from April 1, 1962 to October 31, 1962. For this reason it directed that the assessment of damages be amended so that the defendant was not assessed for the rentals which were due and owing on the premises from April 1, 1962 to October 31, 1962. On January 10, 1963 the plaintiff amended the assessment of damages "as per court order of December 17, 1962," which covered rental at $150.00 a month for the months of November and December 1961, January, February and March 1962, or a total of $750.00, to which was added interest and attorney's fee, making a total amount of damages, as amended, as $806.25.
A petition to open a judgment is addressed to the equitable powers of the court, and, if doubt exists as to the real justice and equity of the case, the court below should not be reversed on appeal in the absence of an abuse of discretion: Klein v. Mathewson, 384 Pa. 298, 121 A.2d 577.
The appellant cites a number of cases to show that where a question of fact exists as to a surrender, the matter should be referred to a jury. In the instant case there was no question of fact to be submitted to the jury. It is clear from the appellee's letter of September 11 that the landlord intended to hold the tenant to the term of his lease. It is also clear from the defendant's testimony that he knew this to be the intention of the landlord. There was, therefore, no issue of fact to be submitted to the jury. The sole issue in a case of this kind is whether or not there was evidence of an intention on the part of the lessor to accept the lessee's surrender of the lease. There was no such evidence in this case. In Brill v. Haifetz, 158 Pa. Super. 158, 44 A.2d 311, we quoted with approval what was said in the case of Ralph v. Deiley, 293 Pa. 90, 94, 141 A. 640, "that the burden of showing an acceptance of a surrender is on the lessee `and is primarily a question of the landlord's intention. It is usually a question of fact for the jury (Breuckmann v. Twibill, 89 Pa. 58), but the evidence may be such as to make it one of law for the courts.'"
"Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent." Breuckmann v. Twibill, 89 Pa. 58, 59.
The appellant also argues that judgment may not be entered for unliquidated damages. Here judgment was entered for the entire year's rental of $1,800.00 and this was entirely proper because the lease contained an acceleration clause which gave the plaintiff the right to confess judgment, as was done in this case. It was true that the affidavit of default recited rent due from October 1, 1961 instead of November 1, 1961, but the amount of the rent due was correctly assessed. The defendant's principal contention is that he was entitled to a credit for mitigation of damages for the entire amount of income received by the landlord from the rerental of the property. The rental of the premises under the original lease was for $150.00 a month. Under the lease which commenced April 1, 1962 with the new tenant, the rental which the landlord was to receive was $300.00 per month. The appellant argues that he should be given credit for the full amount of the rentals which the plaintiff received for this period from April 1, 1962 to October 31, 1962, or an amount of approximately $2,100.00, which would then relieve appellant of all liability under his lease. This argument ignores the fact that the landlord, in order to obtain this additional $150.00 per month rental, had to incur expenses in the amount of several thousand dollars in order to put the property in such condition as to obtain a new tenant. Without these expenditures the increased rental would not have been obtained.
The court below allowed the landlord, under the reassessment of damages, to recover rent for the five-month period from November 1, 1961 until April 1, 1962, when the new tenant took possession. This five-month vacancy period was caused by the defendant's withdrawal from the property and the court's action was entirely equitable. No case has been cited by the appellant to justify his position. In none of the cases is it asserted that where substantial improvements have been made by the landlord and because of these improvements the landlord is able to rent the property at a greater amount of rent than the tenant was originally liable for, that the increase in rent should be for the benefit of the tenant.
Appellant also argues that the judgment is void and cites Mars National Bank v. Hughes, 243 Pa. 223, 89 A. 1130, in support of his argument. In that case the plaintiff filed a petition to amend the original declaration and confession of judgment. In the present case no petition was filed by the landlord to amend the original declaration and confession of judgment. In the Mars case the Court said, at page 225: "For errors in the entry of the judgment, or for the correction of clerical mistakes, application should have been made to the court to correct the original judgment to conform to the facts, but this was not done." That is exactly what was done in the present case and the court below, which had jurisdiction of the matter, on its own motion directed the correction of the assessment of damages.
We are of the opinion that there was no abuse of discretion by the court below in refusing to open the judgment in this case.
Order affirmed.