Shapiro v. Press

Opinion by Porter, J., The plaintiff filed a bill in equity averring, in sub* stance, that the defendants were the owners of a large building, used as stores and offices, at the northwest corner of Eighth and Chestnut streets, in the City of Philadelphia; that he (plaintiff) became a tenant, in 1918, of one of the stores, No. 46 South Eighth street, under a lease expiring in September, 1921; that in the latter part of 1919 the defendants began the construction of certain additions and alterations upon their property; that on January 14,192.0, the defendants, by their agent, entered into a written agreement with the plaintiff leasing to the latter a part of the said premises, for the term of five years from the 15th day of March, 1920, for the total rental of $22,500, payable in monthly installments, of $375, in advance; the part of the premises which was the subject of this lease being “All that certain space, containing approximately twenty-five feet on Eighth street and extending of that width in depth, seventy-five feet, being known and numbered as Nos. 44 and 46 South Eighth St.”; that prior to the execution of the new lease the store No. 46 South Eighth street, which was [252] then occupied by tbe plaintiff under Ms former lease, bad been fifty feet deep, wbicb depth was increased, by tbe covenants of tbe new lease, to seventy-five feet, thus adding twenty-five feet to tbe depth of that store; that tbe defendants agreed that if tbe plaintiff would execute a new lease and surrender tbe balance of bis term under tbe old lease they would pay him $750 in consideration of such surrender-; and that, relying upon tbe covenant of tbe lease increasing tbe depth of tbe store No. 46 South Eighth street and tbe parol contract of tbe defendants to pay him $750 in consideration of tbe surrender of tbe remainder of bis term under tbe prior lease, tbe plaintiff executed tbe new lease and surrendered tbe lease of 1918. Tbe bill further averred that tbe defendants subsequently refused to pay him tbe $750 which they bad agreed to pay for tbe surrender of bis rights under tbe lease of 1918 and failed and refused to extend tbe depth of tbe store No. 46 South Eighth street to seventy-five feet and give him possession of part of tbe space called for by tbe lease of January 14, 1920. Tbe bill averred, in addition, that tbe workmen employed by tbe defendants in making tbe repairs in and about tbe building bad carelessly and negligently damaged tbe furniture and fixtures belonging to tbe plaintiff in tbe store No. 46 South Eighth street to tbe amount of $195.20. Tbe prayers of tbe bill for relief were: 1. That tbe defendants be ordered and directed to increase tbe depth of tbe store No. 46 South Eighth street, from its present depth of about fifty feet, to tbe depth of seventy-five feet called for by tbe covenants of tbe lease of January 14, 1920, so that tbe plaintiff may have possession of tbe space fronting twenty-five feet on Eighth street and a depth of seventy-five feet, as by tbe lease covenanted. 2. That tbe defendants be ordered and directed to pay tbe $750 wbicb they agreed to pay for tbe surrender of tbe lease of 1918, and to pay tbe sum of $195.20 for tbe injuries to plaintiff’s furniture and fixtures caused by tbe negligence of defendants’ employees. [253] 3. That the defendants be enjoined and restrained from proceeding by levy or distraint for rent to collect the rental of $375 per month, to become due under the terms of the lease, until they have performed their covenants and undertakings, and made settlement for the damages to plaintiff’s furniture and fixtures. The defendants demurred to the .bill, alleging, among other grounds of demurrer: 4. That the court has no jurisdiction of the said bill. 5. So far as the first prayer for relief is concerned, the bill is an ejectment bill, and the plaintiff has an adequate remedy at law. 6. That the plaintiff has an adequate remedy at law for the recovery of any sum due him by the defendants. 7. So far as the second prayer for relief is concerned, the plaintiff has an adequate remedy at law by an action of assumpsit. 8. The court has no jurisdiction to enjoin or restrain a levy or dis-traint for rent. The court below sustained the demurrer, upon the ground that all the matters complained of in the bill may be remedied in appropriate proceedings at law, and entered a decree dismissing the bill. The plaintiff appeals from that decree. The plaintiff is in possession of all of the store No. 44 South Eighth street and of the store No. 46 South Eighth street to a depth of fifty feet. He asserts that he is entitled to the possession of twenty-five feet additional depth of space, in connection with the latter store. The averments of the bill make it clear that the plaintiff never was in possession of the additional space which he asserts the right to occupy and possession of which he seeks by this proceeding to obtain. He does not suggest that there was any mistake in drafting the covenants of the written lease, but, on the contrary, avers that it is a correct statement of the covenants of the parties. He does not allege that he was induced by fraud to enter into the covenants of the lease. The bill contains no averment which gives the plaintiff standing to assert his rights in a court of equity. The first prayer for relief seeks to have the court determine the strictly [254] legal rights of these parties to possession, of land. The bill, so far as this branch of the case is concerned, is an ejectment bill, and the court was without jurisdiction, upon the facts in the bill averred, to determine the rights of the parties in this proceeding: North Pennsylvania Coal Co. v. Snowden, 42 Pa. 488; Goss v. Spencer, 245 Pa. 12; Fredericks v. Huber, 180 Pa. 572; Minnich v. Kauffman, 265 Pa. 821. The injury which the plaintiff seeks to have redressed by the second prayer for relief is absolutely devoid of any feature which could confer jurisdiction upon a court of equity. If the defendants promised to pay the plaintiff $750 in consideration of his surrendering his old lease and entering into a new one, it was a plain promise to pay a specified sum of money, and the proper way to enforce it is by action of assump-sit. If the employees of the defendants negligently damaged the furniture and fixtures of the plaintiff to the amount of $195.20, the proper way to enforce the obligation of the defendants to compensate plaintiff for the injury is by an action of trespass. The third prayer for relief cannot avail the plaintiff in invoking the jurisdiction of a chancellor, for he is not without a remedy at law in case the defendants make an unlawful dis-traint for rent. If the defendants have leased to the plaintiff premises and have given to him possession of only part of the same, then, if the contract is entire they can recover no rent, and, if the rental for the different portions of the premises is severable, they can recover only the rent for the part of which they have given him possession: McClurg v. Price, 59 Pa. 420; Joyce v. Lynch, 2 Atlantic 494; Allegaert v. Smart, 10 W. N. C. 29. Should the defendants distrain for rent when none is due, or for more than is due, the remedy of the plaintiff is replevin, or trespass. The court below did not err in holding that the plaintiff had adequate remedies at law and that the matters complained of were not cognizable in equity. The three alleged wrongs for which the plaintiff sought remedies in this proceeding were [255] essentially distinct and rested on different grounds. Each must be adjudicated on its own evidence without any reference to the other. Had the court certified the case to the law side, as provided by the Act of June 7, 1907, P. L. 440, the plaintiff would have been placed in the position of trying, in one proceeding, an action of ejectment, an action of assumpsit and an action of trespass. These considerations probably led the learned counsel for the plaintiff to refrain from moving the court to certify the case to the law side, under the provisions of the Act of June 7, 1907. Because of the multifarious character of the relief sought, and the court not having been moved to certify the case to the law side, the decree ought not to be reversed upon the ground of its failure to so certify: Drum v. Dinkelacker, 262 Pa. 395. The plaintiff had adequate remedies at law for all the wrongs which he asserted. His rights were based upon distinct grounds, not dependent upon each other, they could not be enforced in a single action at law and the appellant was not aggrieved by the failure of the court to certify the inharmonious mass to the law side for trial. The case could not have been tried in a single proceeding at law. The judgment is affirmed and the appeal dismissed at cost of the appellant.