Sizer v. Russett

Opinion by W. D. Porter, J., This was a proceeding, under the Act of December 14, 1863, P. L. (1864) 1125, to recover possession of demised premises. There are two questions presented by the specifications of error, first, Was the landlord required, under the terms of the lease, to give notice, prior to the expiration of the term, to the tenant to quit, in order to be entitled to proceed under this act ? Second, Was there any evidence of a renewal of the lease which ought to have been submitted to the jury? The lease under which the defendant came into possession of the premises contained this covenant: “ The notice to quit required by any act of assembly previous to proceedings to recover possession of the demised premises is hereby waived by the said party of the second part.” This rendered it unnecessary for the landlord to give notice to quit prior to the end of the term: Hutchinson v. Potter, 11 Pa. 472 ; Wilgus v. Whitehead, 89 Pa. 131. Immediately upon the expiration of the term the landlord demanded possession, and there was no lawful continuance of the tenancy. There was no evidence whatever of a renewal of the lease. The contention of the defendant that the plaintiff accepted rent for two months of a new term has no foundation in the testimony. She testifies that the landlord demanded two months’ rent, which he explicitly asserted was in arrear for the term which had expired, and the tenant complied with the demand and paid the amount. An examination of the account disclosed that the landlord had demanded rent which had already been paid. The defendant then asserted the right to create a new term, by applying the money so paid to rent which would have accrued after the expiration of the original term. The money so paid under a mistake of fact may be recovered. It is [112] clear, upon defendant’s own showing, that she knew when she paid the amount that the landlord believed she was paying rent for the term which had expired and that he received it upon that account. After the mistake was discovered, the landlord tendered the money back. The defendant now seeks to establish the right to a new term, by making an application of the payment different from that which was made by the parties at the time of the transaction; this she cannot do. The plaintiff was entitled to binding instructions, under the evidence, and the grounds upon which the learned court below put such instructions did the appellant no harm: Wilcox v. Montour Iron Company, 147 Pa. 540. Judgment affirmed.