Arrott St.-P. Mills Co. v. Way Mfg. Co.

Opinion, Mr. Justice Sterrett: The first specification of error was abandoned. The main question presented by the second to the fourth specifications, inclusive, is as to the competency of the witness John H. Way, a member of the company defendant, and also of the companies which preceded it, to prove conversations with William Arrott, deceased, the lessor, in relation to the terms of the first lease made in April, 1883, etc. The facts bearing on the question are somewhat complicated. Some of them are embodied in the specifications, and others necessary to an understanding of the question are found in the history of the case. It was claimed by plaintiff company, and evidence was introduced tending to prove that in April, 1883, William Arrott, the then owner of the Ontario Mills building, leased the fifth floor thereof to J. H. Way, Brother & Go., composed of the witness John H. Way, Pennington Way, A. T. Evanson, and Hunter Evanson, at an annual rent of one thousand five hundred dollars, payable monthly. In July following, plaintiff company was organized under the act of 1874, and a few days thereafter William Arrott conveyed said building and appurtenances to the new corporation, subject to all existing leases. In April, 1885, plaintiff company, acting through its president [442] and agent, William Arrott, leased to said firm, composed of same persons, one half of the fifth floor of said building, at an annual rent of one thousand dollars, payable monthly, and in January, 1886, leased to it the remaining half of same floor on same terms. In October, 1885, the plaintiff company, still acting through its said president and agent, leased to same firm a warehouse connected with said building, at an annual rent of two hundred and fifty dollars, payable monthly. On September 11, 1886, William Arrott died, and his son, William H. Arrott, succeeded him as president of the company plaintiff. Between January and November, 1886, the said firm, J. H. Way, Brother & Co., dissolved, and was succeeded by J. H. Way & Brother, composed of John H. Way, the witness, and Pennington Way. In July, 1888, this latter firm was succeeded by the defendant, the Way Manufacturing Company, Limited, composed of the four persons who constituted the first-mentioned firm of J. H. Way, Brother & Co. As each of these organizations succeeded the other, it assumed all the liabilities of its predecessor on existing leases of parts of the Ontario Mills building. In November, 1886, the plaintiff company, acting through its president and agent, William H. Arrott, leased to J. H. Way & Brother, above named, the third floor of said building, at two thousand dollars p'er annum, payable monthly. On January 31, 1888, after having given a month’s notice of its intention to do so, the defendant company vacated the leased premises. In doing this, it acted on the assumption that the leasing above mentioned was from month to month, and not an annual leasing, though the rent had been, upon each increase of the space taken, so adjusted that it ran from the first of the month then last past, at the aggregate annual rate agreed upon, amounting since November 6, 1886, to $5,750 per annum, payable monthly in sums of $479.16§. The alleged contracts, above referred to, were altogether verbal; there was nothing in writing. The main question in dispute between the parties was whether the lettings were from year to year, as contended by the plaintiff, or from month to month, as maintained by the defendant. If it was the former, the defendant was liable for the rent until the end of the year; if the latter, it had a right to remove from the premises on the last day of January, as it did, upon giving one month’s notice. [443] In view of what has been said, it was important, as the learned judge observed in his charge, to determine what was the contract between William Arrott, deceased, and his lessees. If it could be shown to the satisfaction of the jury that it was an annual lease, and not a monthly letting of the fifth floor, it would go very far towards settling the question as to the subsequent contracts. William Arrott, it will be remembered, was the sole lessor in the first contract, and liis interest in that lease subsequently passed to the company plaintiff, and is one of the things or contracts in this action. The witness John H. Way, one of the original lessees, and by his membership of the company defendant a party to the record, was permitted to testify to conversations with the lessor, since deceased, for the avowed purpose of proving that the lease was not by the year, but from month to month. This appears to bring the case directly within the letter as well as the spirit of the proviso to the act of 1887, § 5, (e), P. L. 159 : “ Nor, where any party to a thing or contract in action is dead, .... and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased..... party, be a competent witness to any matter occurring before the death of said party.” Nor was he a competent witness to prove the first lease for the purpose of showing the terms of the subsequent leases, made by William Arrott as president of the company. There was no error in excluding the offers of evidence referred to in the fifth to the seventh specifications. As to the leasing in question, it was claimed by both parties that there was a verbal contract, and the only question was, what were the terms of that contract? Any inquiry as to the custom of William Arrott in renting, or as to what he may have said to the witness Murphy, or as to the usage of plaintiff company in like cases, was irrelevant. For aught that appears, the witness Murphy was a stranger to the transaction, and what William Arrott may have said to him was immaterial. There is nothing in the remaining specifications that requires special notice. Judgment reversed, and a venire facias de novo awarded.