Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 4) online

. (page 16 of 65)
Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 4) → online text (page 16 of 65)
Font size
QR-code for this ebook

equally true that a partner may be made answerable to the firm
for misconduct in involving it in responsibility. It is said in-
deed that trover to recover damages for a destruction of the
joint property, is the only action founded in tort that can be
maintained between partners. That would seem, however, to
have been asserted without sufficient consideration ; for it is not
easy to see why a partner should not be answerable to the firm,
as in any other case of principal and agent, for gross and wilful
misfeasance. In Hadfield v. Jameson, it was taken for granted,
that the delinquent partner was liable to the other for the loss
of the ship; but certainly not in trover, for his acts were evi-
dence of anything but conversion. The act then of Nisbet,
being prima facie the act of his partner, was evidence of a joint
conversion subject, however, to be rebutted by proof, if such


323 SUPREME COUET [Philadelphia,

[Nisbet and another v. Patton and others.]

there were, that the latter had openly disclaimed the act at the
time; and the direction was in all respects essentially right.

Judgment affirmed.

Commented on by the Court, UN. 109.


Lesley and Another against Randolph.


A lease for no determinate period of time, but by which an annual rent is
reserved, payable quarterly, is a lease from year to year, so long as both
parties please. It is binding on the parties prospectively for one year only,
capable, however, of being extended to a second, third, fourth, or fifth year,
and so on, unless determined by the dissent of either party, which may be
done at the close of any one year by giving three months' previous notice to
that effect, but at no time before the close of a year, after it has once com-

Consequently, where the tenant continues to hold the demised premises
until after the commencement of the second year, without offering to sur-
render the possession to the landlord, or receiving from him notice to quit,
he is entitled to hold for another year in despite of the landlord, but at the
same time is bound to pay the year's rent quarterly, according to the agree-

THIS was a writ of error to the District Court for the city and
county of Philadelphia.

The plaintiffs in error, Robert Lesley and William Meredith,
trading under the firm of Lesley & Meredith, were defendants
below, in an action brought against them by the defendant in
error, George F. Randolph, to recover part of a year's rent
claimed under the circumstances set forth in the following case


" The plaintiff as owner of the store or warehouse, No. 241
High street, in the city of Philadelphia, leased the same to the
defendants on the 23d day of April, 1828, according to the
terms of the following agreement, executed by the defendants,
and assented to by the plaintiff, viz. :

" ' We have this day rented of George F. Randolph, the store
or warehouse, No. 241 High street, the rent to be eight hundred
dollars per annum, payable quarterly. It is expressly under-
stood and agreed by us, that we are not to relet the premises, or

l, 1833.] OF PENNSYLVANIA. 124

[Lesley and another r. Randolph.]

any part thereof, to any person, or for any purpose or business,
without the approbation and consent of George F. Kaudolph.
"' Philadelphia, April 23d, 1828.'

"The defendants, immediately after the execution of this
agreement, entered upon the premises and continued to occupy
the same till July 23d, 1829, when they removed, having paid
all the rent due at that time, and thereupon tendered the key
of said store or warehouse to the plaintiff, who refused to re-
ceive it.

"On the 1st day of December, 1829, by the mutual consent
of the plaiutiif and defendants, and without prejudice to the
rights ot either party, the said store or warehouse was let to a
third person.

" If the court be of opinion that the plaintiff had a right to
consider the defendants as tenants of the premises for a second
year, in consequence of their retaining possession under the
.above agreement of April 23d, 1828, after the expiration of the
first year as above mentioned, judgment is to be entered for the
plaintiff for two hundred and eighty-four dollars forty-five
cents, and for interest on the same from December 1st, 1829,
till the rendering of judgment, with costs of suit; otherwise
judgment is to be entered for defendants with costs of suit ;
either party to be entitled to a writ of error."

The District Court gave judgment for the plaintiff for three
hundred and nineteen dollars and ten cents, and the defendants
removed the cause to this court by writ of error.

Chauncey, for the plaintiffs in error. The lease set out in the
case stated, is either a lease for a year or for a quarter only.
Whether it be one or the other is immaterial to the plaintiffs in
error, for in either view of it, the judgment of the court below
is erroneous. If the demise was for a year, then according to
the case of Logan v. Herron, 8 Serg. & Rawle, 459, upon notice
given before the expiration of the first quarter of the second
year, the tenants might have been dispossessed by the landlord,
and of course they had a right to quit at the time they did, or
there would be a want of reciprocity in the obligations of the

If the demise was for a quarter, it is equally plain that the
tenants, having surrendered the property leased, and tendered
the stipulated quarterly rent before entering upon the second
quarter of the new *year, were discharged from all
further liability to the landlord. They had a right, if


125 SUPREME COURT [Philadelphia,

[Lesley and another v. Randolph.]

the lease was to endure for so short a term, to leave the premises
at the end of the first quarter, or of any subsequent one. Such
being the agreement of the parties, the landlord asked too much,
when he demanded payment beyond the period for which the
rent was tendered, and the court below erred in the judgment
which gave it to him.

Stroud for the defendant in error. The lease in this case was
not for a definite period ; it was not for a single year, or for any
portion of a year, but was without limitation as to time, which,
by construction of law, is a lease from year to year. A general
taking at an annual rent, is a lease from year to year. Chamb.
Laud, and Ten. 355 ; Comyn's Land, and Ten. 8, 91, 303 ; 2
Bl. Com. 147 ; Right v. Darby, 1 T. R. 161. The decision in
Logan v. Herron, which is supposed to interfere with the judg-
ment of the court below, was the case of a lease for a fixed
period, "for one year from the 1st of April, 1816," and the
language of the court cautiously restricts the decision to such a
case. " Where the termination of the lease is uncertain," says
C. J. Tilghman, 8 Serg. & Rawle, 461, "and depends upon the
will of the landlord, it is necessary that notice should be given
during the lease. As where a lease is made for a year, and so
from year to year as long as it pleases the landlord, or as long
as it pleases both parties, if the landlord wishes to determine the
lease, he must give notice three months before the expiration of
the year." The same distinction is asserted by Judge Gibson,
in page 470. The earlier case of Bedford v. M'Elherron, 2
Serg. & Rawle, 49*-50*, is to the same effect. Diller v. Roberts,
13 Serg. & Rawle, 60, which is the last reported decision of our
courts upon the doctrine of an implied renewal of a lease, by
the holding over of the tenant, and the omission of notice to
quit by the landlord, contains nothing in opposition to what is
contended for by the defendant in error, but is rather confirma-
tory of his views.

The opinion of the court was delivered by

KENNEDY, J. It has been contended for the plaintiffs in
error, that the agreement under which they took the warehouse,
amounted only to a specific letting for one year, and no more ;
and that according to the decisions of this court, in the cases of
Boggs v. Black, 1 Binn. 335, and Logan v. Herron, 8 Serg. &
Rawle, 459, they became immediately upon the expiration of the
year, to wit, the 23d of April, 1829, tenants at sufferance, liable
to be turned out of possession at will of the defendants in error;
and were not bound therefore to pay for the use of the ware-
house after that, longer than they continued to occupy it ; and

Feb. 11, 1833.] OF PENNSYLVANIA. 125

[Lesley and another v. Randolph.]

were at liberty to surrender the possession at any moment they
pleased. The nature of the lease in the latter of the above
cited cases has been relied on as being substantially the same
with the lease in the present case.

I however think there is a difference which has been recognised
by *courts, judges, and writers on this branch of the
law. In Logan & Herron the lease was specifically for
one year. Nothing appears on the face of it from which any
possible inference could be drawn, that it was within the con-
templation of the parties that it should endure beyond that time.
If either party therefore became desirous, at or before the expi-
ration of the year expressly agreed on, to continue the relation
of landlord and tenant beyond that period, he surely had no
reason to calculate upon it without first knowing the will of the
other party in respect to it, and if he did not choose to take the
trouble of informing himself, I do not see any good reason he
could afterwards have to complain that the other party, without
giving him three months' notice previously to the expiration of
the year of his intention, had resolved to decline all further re-
newal of the lease. It seems to be established in England, as
well as here, that when a lease or demise is determiuable on a
certain event, or at a particular period, no notice to quit is ne-
cessary, because both parties are equally apprised of the deter-
mination of the term ; and it is not material whether it be only
for a single year, or any longer period. See Chamber's Landlord
and Tenant, 750 ; Jordan v. Ward, 1 H. Bl. Eep. 97 ; Godsell
v. Inglis, 3 Taunt. 54; Bing.'s Landlord and Tenant, 177; Cobb
v. Stokes, 8 East, 358 ; Right v. Darby, 1 Term Rep. 163 ;
Messenger v. Armstrong, 1 Ib. 53 ; Bedford v. M'Elherron, 2
Serg. & Rawle, 50* ; Boggs v. Black, 1 Biun. 335 ; Logan v.
Herrou, 8 Serg. & Rawle, 459 ; Van Cortlandt v, Parkhurst,
5 Johns. 128 ; Adams on Ejectment, 1012.

Now the lease or agreement in the case under consideration is
not expressly for any determinate period of time, and it is only
by construction that a limitation can be affixed to it. It, at an
early period in England, would have been considered a letting
at will, but as it is not so in express terms, it would at the time
of our Revolution have been deemed a lease from year to year ;
and more especially so, as an annual rent is reserved to be paid.
2 Bl. Com. 147, Chitty's ed. and note (11). Adams on Eject,
1023. Sir William Blackstone says, speaking of tenancies at
will, "Courts of late have rather held them to be tenancies from
year to year, so long as both parties please, especially where an
annual rent is reserved." 2 Bl. Com. 147. In Bree v. Lees, 2
Bl. Rep. 1173, Lord Chief Justice De Grey, says, "All leases
for uncertain terms are prima facie leases at will; it is the reser-

139 '

126 SUPREME COUET [Philadelphia,

[Lesley and another v. Randolph.]

vation of an annual rent that turns them into leases from year
to year." And Sir J. Mansfield, Chief Justice, in Richardson v.
Langridge, 4 Taunt. 131, lays down the same rule in a case put
by him by way of illustrating it in the following words : " If
there were a general letting at a yearly rent, though payable
half yearly or quarterly, and though nothing were said about
the duration of the time, it is an implied letting from year to
year." Now this meets the description of the lease in question
in every particular with the utmost precision, which is a general
letting without anything being said as to the duration of the
time,,at a yearly rent of eight hundred dollars payable quarterly.
r*i v~| It *also comes directly within the description of a lease
J from year to year, as it is given by Messrs. Chambers,
Bingham, and Comyns, who have each written and compiled a
treatise on this subject. Mr. Chambers, in his work, page 355,
says, that "a general taking at an annual rent is a lease from
year to year." See Bing. Landlord and Tenant, 1 77, and Co-
myn's Landlord and Tenant, pp. 7, 8, 91, and 303, all to the
same effect. Besides, it appears to me, that the intention of the
parties to the lease in the present case, so far as it can be col-
lected from the face of the writing itself, requires it to be con-
strued a lease from year to year, and so on as long as both parties
pleased; otherwise some determinate point of time as its end or
fixed period of duration, would have been expressly mentioned.
But if it were even doubtful whether such was the intention of
the parties, still upon the principle that every lease is to be
taken most strongly against the lessor, and this construction
being the most favourable for the lessees it ought to prevail.
There is also another view to be taken of this agreement, which
still further satisfies me that this is the true construction to be
put upon it, which is this : suppose the plaintiffs in error had
continued to occupy the warehouse for the space of eighteen
months or two years without having paid any rent, and without
any dissent having been expressed to their so holding it, could
they not have been distrained on at common law. or have been
sued for the rent for the whole of the time which had elapsed
under this agreement as an entire contract, which had by its
terms opened at the commencement of every succeeding year to
embrace it, and had become binding upon the parties for that
year, in the same manner as if the agreement had been for a
fixed and definite period which included it ? There is certainly
no objection to an affirmative answer to this question to be found
on the face of the agreement ; and without giving to it this
construction, great injustice might occasionally accrue to either
party. I however do not wish to be understood as entertaining
the opinion that a lease for a year, and so from year to year as

Feb. 11,1833.] OF PENNSYLVANIA. 127

[Lesley and another v. Randolph.]

long as both parties shall please, is a lease for the term of two
years certain at its commencement. My idea of it is this : that
it is binding prospective!} 7 on the parties for one year only,
capable however of being extended to a second, third, fourth, or
fifth year, and so on, unless determined by the dissent of either
party, which may be done at the close of any one year, by giving
three months' previous notice to that effect, but at no time before
the close of a year after it has once commenced.

Whether it be a lease in the first instance for one or two
years certain, is a question upon which there has been some
diversity of opinion.

Brooke, in his Abr. tit. Tenant, per copy de court roll, pi. 17,
says, " By the best opinion it is a lease for years." This accord-
ing to what is laid down in the Bishop of Bath's Case, 6 Co.
36, as necessary to constitute a lease for years would make it
at least two years, as less would not satisfy the plural number.
The case of Agard v. King, *Cro. Eliz. 775, declares r^iocn
it to be a lease for two years certain. In the Bishop L
of Bath's Case, 6 Co. 36, it was resolved, after three years at
most, to be a lease at will ; which Rolle in his Abr. 851, seems
to think means a lease for two years at least, but after three
years at most, only an estate at will. In Bellasyse and Bur-
bridge, 1 Lutw. 213, it was held' to be a lease for two years ;
and in Staufill v. Hickes, 1 Ld. Raym. 280 ; s. c. 2 Salk. 413,
3 Ib. 135, it seems to have been considered a lease for two
years, and after that a lease only at will. And in a late case of
Denn v. Cartwright, 4 East, 31, it was pronounced to be a de-
mise for two years at least. But as no authorities are vouched
in thn report of this case, it is probable that the decision was
made without an examination of them.

On the other side in an anonymous case, 2 Salk. 413, it was
held, if A. demised lands to B. for a year and so from year to
year, that it was not a lease for two years and afterwards at will,
but it was a lease for every particular year, and after the year
was begun, the defendant could not determine the lease before
the year was ended, s. C. Holt's Rep. 414, ruled by Chief
Justice Holt, at the summer assizes at Lincoln, 1699. In Leigh-
ton v. Theed, 1 Ld. Raym. 707, Lord Chief Justice Holt ruled,
that if A. make a lease to B. for a year, and so from year to
year, quamdiu ambabus partibus placue/it. A. may determine
his will at the end of any year, but if a new year be begun, it
cannot be determined before the end of it. He also ruled the
same point accordingly at a trial upon the summer assizes at
Lincoln, 1699, between Lely and Green.

In Dod v. Monger, 6 Mod. 215 ; s. c. Holt, 416, he said, " If
a lease be for a year, and so from year to year as long as both


128 SUPREME COURT [Philadelphia,

[Lesley and smother v. Randolph.]

parties shall please, it is a lease binding but for one year ; but
if the lessee without countermand of the lessor, enter upon the
second year he is bound for that year, and so on. And so in
Fen wick v. Lady Grosveuor, 12 Mod. 610, he ruled the same to
be a lease for one year absolutely ; and if the lessee continues
on the first day of the second year, he is bound for that year
also : and so is the lessor if he has not warned him away before
the beginning of the second year."

I have adopted the opinion and decision of Ch. Just. Holt ;
first, because I believe it was the settled law of his time ; next,
because it comports best with the common and ordinary under-
standing and meaning of the terms employed in such leases ;
and lastly, because I consider it as agreeing best with the true
grammatical construction of them.

Indeed I feel altogether at a loss to conceive how the assent
of the parties is to be made out for more at any time than one
year prospectively and absolutely. But that it amounts to a
positive agreement for one year I think is clear ; and further,
if the holding should continue until a second year has com-
menced without the dissent of either party, it becomes a lease
for two years certain, and cannot be determined by either party
before the end of the second year ; and the meaning of the words
(f from year to year," is, that the holding shall only cease at the

f*1 9Q1 en( ^ ^ ^ e y ear an( ^ a ^ no other time ; and if the *hold-
J ing were to continue in like manner for three, four, five,
or six years, it would become, in respect to time past, and as a
contract executed, a lease for just as many years as had elapsed :
and at the end of six years, might be declared on as having been
a lease for that number of years, by either party. This was
expressly ruled and settled in Legg v. Strudwick, 2 Salk. 414,
and in Birch v. Wright, where it is placed in a very clear and
satisfactory point of view, by Mr. Justice Buller, 1 Term . Rep. 380.
Believing the lease in question then to be a lease from year to
year, the plaintiffs in error, having continued to hold the de-
mised property until after the second year had commenced,
without offering to surrender the possession to the defendant
in error, or having received from him any notice to quit, be-
came tenants under the agreement, entitled to hold it for an-
other year, in despite of the defendant in error ; but at the
same time bound upon the principle of reciprocity to pay the
rent of three hundred dollars quarterly. The defendant in error
could only have put an end to the lease, by giving a notice to
the plaintiffs in error, at least three months before the end of
the year, to surrender to him the possession, as soon as that
time should come around. This principle is settled or recog-
nised in Bedford v. M'Elherron, 2 Serg. & Rawle, 50* ; Brown

Feb. 11, 1833.] OF PENNSYLVANIA. 129

[Lesley and another v. Randolph.]

v. Vanhorn, 1 Binn. 334, in note ; Fahnestock v. Faustenauer,
5 Serg. & RawJe, 174 ; Thomas v. Wright, 9 Serg. & Rawle,
87. Indeed, wherever the lease is not for any precise, express,
and determinate period of time, notice seems to be requisite, as
a reasonable and necessary protection against surprise, and the
consequent loss or inconvenience that might result therefrom ;
and has, in modern times, been extended to a tenancy at will, on
account of its uncertain duration. See Parker v. Constable, 3
Wills. 25.

We think that the judgment of the District Court was right,
and it is therefore affirmed.

Judgment affirmed.

Cited by Counsel, 2 Wh. 44, 164 ; 8 Barr. 283 ; 10 Barr, 41 ; 7 H. 437 ; 9 H.
95 ; 8 C. 368 ; 4 S. 87 ; 7 S. 186 ; 32 S. 312 ; 4 O. 207, s. c. 13 W. JS T . C. 241 ;
2 W. N.C.376, 419.

Cited by the Court, 9 Barr, 273 ; 1 Par. 310.

It has been recently ruled that where a tenant from month to month holds
over after the first year, his tenancy does not change into one from year to
year, but continues as before, and a month's notice at any time is all that it is
necessary for him to give. 4 O. 207, s. c. 13 W. N. C. 241.

*[PHLLADELPHIA, FEBRUARY 11, 1833.] [*130]

Bertsch against The Lehigh Coal and Navigation


Parol evidence may be given to explain a written agreement, so far as to
give locality and identity to the subject-matter of it, and apply the contract
to it.

Therefore, where in a proceeding under the acts, incorporating the Lehigh
Coal and Navigation Company, to recover damages for injuries done by the
company to the land of the plaintiff, the defendants pleaded in bar, a written
agreement for the purchase of the plaintiff's land, through which the defend-
ant's canal was to pass, it was held, that the plaintiff might give parol evi-
dence, that, at the time the agreement was entered into, the line or route of
the canal was laid out and designated by stakes, set up through the plaintiff's
land ; that the written agreement was made in reference to this line ; that
the land lying between it and the river is the same land that is described in
the agreement, and that the defendants, instead of confining themselves to
this line, as then staked out, in constructing and making their canal, or, at
least, keeping between it and the river, extended the canal beyond the line,
and further from the river into the other land of the plaintiff, and thus cut
off a greater quantity of land from the main body of his farm, than was
agreed on.

But parol evidence is not admissible to show that the defendants agreed to
build two locks upon that part of the canal which passed through the plain-
tiff's land, as a part of the consideration he was to receive for parting with it
to the defendants; the written agreement containing no such provision.


130 SUPREME COURT [Philadelphia,


[Bertsch v. The Lehigh Coal and Navigation Company.]

The remedy given by the acts of assembly, incorporating the Lehigh Coal
and Navigation Company, to the owner of the land, to recover damages for
injuries done by the company in constructing their works, can be resorted to
only where the parties are unable to agree upon the compensation to be made
to the owner of the land Where an agreement has been entered into, the
remedy is by suit on the agreement. But if the company, after such an agree-
ment, without regard to it, go on and make their canal through land different
from that which was agreed on, the owner is at liberty to rescind the contract,
and proceed under the acts of assembly.

THIS was an appeal from the decision of Judge Huston,
holding the Circuit Court of Northampton county, in Septem-
ber, 1831.

It was a proceeding under the acts of 20th March, 1818, en-
titled "An act to improve the navigation of the river Lehigh/'
(Pam. Laws, 197,) and of the 13th February, 1822, entitled
"An act tc incorporate the Lehigh Coal and Navigation Com-
pany." (Pam. Laws, 21.)

The first section of the act first mentioned, authorized Josiah
White, George F. A. Hauto, and Erskiue Hazard, their heirs
and assigns, to enter upon the river Lehigh, to open, enlarge; and
change its channel, &c., to make dams, locks, or any other device
which they should think fit and convenient, to make a good
navigation downward, &c. The second section provides, " that

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 4) → online text (page 16 of 65)