Ashhurst v. Eastern Pennsylvania Phonograph Co.

Opinion bx Mb.. Justice'McCollum, Does the affidavit contain a good defence to the action? ■ The. [359] answer to this question depends entirely upon the construction of the lease, because the portion of the affidavit which relates to the surrender of the demised premises is clearly insufficient' to prevent judgment. An averment of the surrender is unavailing without the further averment of an acceptance of it by the lessor: Teller v. Boyle, 132 Pa. 56. The real question therefore is whether the provision in the lease in regard to notice of an intention to determine the tenancy applies to each year of. the lessee’s occupancy of the demised premises or is limited to; his possession of them after the expiration of the additional year mentioned therein. This provision is somewhat obscure* and confusing, but there is no room in it for a construction which dispenses with notice the first year and requires it to be, given in order to terminate the tenancy at the end of the second or “ additional year.” If the lessors could have dispossessed the lessee at the end of the first year without having giv.en three months’previous notice of their intention to determine the tenancy at that time, we see no good reason why they could not have done so at the end of the second year, and if the rights and obligations of the parties were mutual in this respect, it follows that the'lessee was at liberty to surrender the premises at the expiration of either, year without having given such notice, or incurring further .liability under the lease. It appears to be conceded by the appellants that notice was not necessary to determine the tenancy at the end of the first year, and so far we agree with them. The second term of one year, was not founded upon a failure to give the three months’ notice before the expiration of the preceding term, but upon a. holding over by the lessee with the consent of the lessors. It seems to: us that the rights and obligations of the parties were the same the second year as the first, and that the provision in respect to notice is applicable only to tenancies arising from a holding over after the expiration of the “ additional year.” It being conceded that the notice clause was not operative the first year, the contention based on its concluding words “ any year ” loses its significance and becomes unimportant. This construction, gives effect to the words “after the expiration of this additional year,” while the construction which makes the notice clause applicable to that year ignores them. ■ ; Judgment, affirmed.