Boswell v. Chalmers

Opinion by Trexler, J., The lower court entered judgment for want of a sufficient affidavit of defense. The suit was brought for rent accruing after defendants had vacated the premises. The lease was for one year. It provided for a written notice to be given three months prior to the expiration of the term. The defendant who takes this appeal asserts that the tenancy expired August 10, 1911, that the notice of removal was given verbally by defendants’ agents, naming them, to the landlord on several occasions, all prior to May 11, 1911, a date three months prior to the end of the current term; that plaintiff accepted the verbal notice as sufficient notice of the desire of defendants to terminate the lease on August 10,1911, and that the landlord verbally waived written notice of such termination and no demand for rent was made until 1918. We have not the benefit of an opinon of the lower court. We gather from the reasons filed by the plaintiff in support of the rule for judgment, that the above allegations in the affidavit of defense are regarded as too general. That instead of being statement of facts, they are mere conclusions. 1. Objection is made that instead of fixing the time by naming the date upon which notice was given, the affidavit merely states that the notice was given prior to May 11, 1911. The essential averment is that the notice was given three months prior to the expiration of the term. After a lapse of seven years, it is putting the defendants to a hard task to give the exact date when the transaction occurred. We can easily imagine a state of facts, which, if presented at the trial, would show conclusively that the notice was given more than three [545] months before, and still the defendants be entirely unable to fix the exact date. 2. The place where the notice was given is not stated. This is not essential, since the locality is not a necessary element. All that is required is that the plaintiff received the notice. A verbal notice, if accepted, is sufficient. The waiver of written notice may be by parol: Kiester v. Miller, 25 Pa. 481, and Smith, Ex., v. Snyder, 168 Pa. 541. 3. The failure to allege that the agents of the defendants were duly authorized by them is not fatal. Both the allegations as to waiver and agency are very similar to those in DeMorat v. Falkenhagen, 148 Pa. 393. In that case, the defendant alleged, “that she surrendered possession of the demised premises to P. H. Schaeffer, the agent of the defendant on the 31st day of January, 1891, and possession was accepted by him.” The comment- of Justice Green is, “Of course, as the question arises upon an affidavit of defense, the absolute verity of the allegation must be assumed for present purposes, and we must, therefore, assume that P. H. Schaeffer was the duly authorized agent of the plaintiff, competent to act with reference to this subject.” That the assertion in our case applies to the tenant’s agents instead of the landlord’s as in the above case does not change matters. The statement that defendants’ agents gave the notice, necessarily implies that they were authorized, more especially so when coupled with the words, “that defendants caused notice to be given.” The averments are to be taken as true and the defendant is not required to set forth the manner in which they will be proved, nor the evidence by which they will be substantiated: Lackawanna Trust Co. v. Carlucci, 264 Pa. 226. We think the affidavit is sufficient. Judgment reversed and procedendo awarded.