Frank v. Maguire

The opinion of the court was delivered, March 10th 1862, by Strong, J. The judgment which we are asked to reverse was entered for want of a sufficient affidavit of defence, and the first question is, whether the plaintiff’s ease was within the provisions of the Act of March 28th 1835. It was an action of covenant, in which the plaintiff filed a copy of a lease, which he had made to one John S. Albright, and a copy of an agreement by which the defendant had covenanted to become security for the lessee. The lease contained not only an engagement of the lessee to pay the stipulated rent, but also covenants not to assign or underlet, and covenants to keep the demised premises in repair, and tó surrender them in good order at the expiration of the term. No declaration or statement was filed, and there was nothing 'more than a copy of the lease to indicate whether the action was brought for the non-payment of rent, or for the breach of any of the other obligations which the lessee had assumed. It is clear that a lease, reserving a pecuniary rent, is “an instrument of writing for the payment of money,” within the meaning of the Act of March 28th 1835, and this was decided in Dewey v. Dupuy, 2 W. & S. 553. It was also held in that case that it was not necessary to file a declaration or statement in addition to the copy of the lease. The Act of Assembly does not require it nor make it a pre-requisite to the entry of judgment. The statement spoken of in Dewey v. Dupuy was undoubtedly what is referred to in the Act of Assembly of March 21st 1806; a substitute for a declaration, and not a memorandum accompanying the copy filed, and directing the attention of the defendant to the exact subject of the claim. But neither does the Act of Assembly require the latter. When, as in this case, the instrument, a copy of which is filed, contains, in addition to an engagement to pay a sum in money, other promises or covenants to be performed by the defendant, it is obviously proper, even necessary, that, besides the copy, there should be something to indicate to the defendant precisely what he is called upon to answer, before the issues are formed and the case is ordered for trial. This is not only necessary for an intelligible trial, but to put the record in such a condition as to make it available for a plea of former recovery. But there is no such necessity to enable a defendant to make an affidavit of defence sufficient to prevent a summary judgment. Such judgment can be given [82] against him for no claim arising out of the instrument, other, than that which springs from his engagement to pay money. The filing of the copy is an annunciation that the contract is relied upon as “ an instrument of writing for the payment of money,” and that for the money unpaid the suit has been brought. The defendant cannot be misled or in doubt. He was not, in this case. He directed his affidavit of defence exclusively against the claim for rent, and he has not been injured by the absence, of a statement. Then, were the affidavits sufficient? Taken together, they aver in substance that the rent for the first quarter ivas paid, that after the first quarter of the lease had expired, the premises were rented to other tenants, whom the plaintiff accepted as tenants in the place and stead of Albright, the lessee, and that they attorned to him. They also aver that before the expiration of the lease, the plaintiff accepted the keys and took possession of the demised premises. By the express terms of the lease the rent was payable quarterly. The affidavits doubtless show a defence against any claim for the rent of the first and last quarters. But the judgment was for the rent of the second and third quarters, and the question is, whether the averments are sufficient to prevent a recovery of that. It surely is not necessary to cite cases to prove that a tenant is bound by his express contract to pay rent, even after he has assigned the term with his landlord’s assent, and though the landlord has accepted the assignee as his tenant, and received rent from him. A landlord may, indeed, accept a surrender even by parol, and if he does, the term is gone into the reversion and the rent ceases: Greider’s Appeal, 5 Barr 425; McKinney v. Reader, 7 Watts 124. But is a surrender averred in this case ? Not in terms, certainly, and not even inferentially, unless it be in the allegation that the plaintiff accepted and received De Grath & Co. as tenants in place and stead of John S. Albright, and that they attorned to him. But if he received from them rent reserved under the lease, or accepted them as tenants, it must have been in place and stead of the original lessee, and that would not amount to a surrender of the term: Dewey v. Dupuy, 2 W. & S. 553. If the defendant intended to aver that there was a surrender, it was easy to assert it, so as to leave no doubt. While his affidavits are to receive no strained construction against him, it is not unreasonable to require that he shall not leave in doubt what it was so easy to set' at rest. All which is averred may have taken place, and yet there have been neither surrender nor release. And, indeed, the subsequent part of the supplemental affidavit almost in terms avers that the alleged acceptance of De Grath & Co., as tenants in place and stead of John S. Albright, and their attornment to the plaintiff, was no acceptance of a surrender. The continued [83] existence of the term is asserted. The defendant affirms'that afterwards, i. e. after the receipt of the new tenants, and after their attornment, “ during the pendency of the term of the lease, and a considerable time before its expiration,” the plaintiff received the keys. Up to that time, then, the term continued, and of course there had been no previous surrender. It follows that the affidavits set up no defence to the claim for the rent of the second and third quarters. Judgment affirmed.