Covenant on a lease for rent in arrear.

In an affidavit of defense the defendant averred: "That the defendant was unwilling to lease said premises unless he was satisfied that the plumbing and drainage of the same was in first-class order. He so stated his unwillingness to the plaintiff, and expressed to him the determination to send a plumber to examine the same. But the plaintiff assured him that the well into which the said house was drained had been lately dug, that he had a plumber to thoroughly overhaul every thing, and that he would guarantee that the sanitary condition of the house was good, and that the drainage and plumbing was as near perfect as it could be, and that any thing wrong with the drainage or plumbing would be remedied by him (the plaintiff) at once. That in consideration of these assurances and guarantee of the plaintiff he signed the lease and moved into the house. That the defendant, shortly after moving into the premises, discovered that the drainage was defective, and that the soil-pipe that drained the water-closet in the house also drained the water from the bath-room and kitchen; in point of fact, all the wastage and nuisance of the house was drained through one small soil-pipe. That it drained into a covered well which had no ventilation; said well had not been cleaned, as the defendant is informed, for eight years. That the soil-pipe was so old and rotten that the roots of the trees had worked their way through defective joints, so that they filled the said pipe for a length of thirty feet, rendering it impossible for the contents of the water-closet and kitchen sink to pass through it into the well, but the same drained back into the sink in the kitchen and stationary wash-basins. That the said well was filled nearly to the top, and in consequence thereof and of the premises, the smell through the house was unbearable. That the said. plaintiff was notified of these defects and requested to have them remedied, but he refused. That the defendant employed a practical plumber to remedy these defects which was done at an expense of $53.84, which he, the said defendant, has since paid. He has also paid the sum of $53 for having said well cleaned. Defendant also deposes, etc., that the premises in question were well-known by said plaintiff and every body in the neighborhood to have defective drainage, and that they laid idle for a long time in consequence of that fact

A rule for judgment. for want of a sufficient affidavit of defense was made absolute, when defendant took this writ and assigned this action of the court for error.

Lewis Stover, for plaintiff in error. E. P. Allinson, for defendant

in error.

MERCUR, Ch. J. This suit was by a landlord against his tenant, to recover one month's rent of a building and premises, let at the annual rental of $900.

Judgment having been taken for want of a sufficient affidavit of defense, all the facts therein averred must be considered as true, for present purposes. The question then is, do they constitute a defense which should have been submitted to the jury?

The lease is in writing. It stipulates the lessee shall not use the premises otherwise than as a dwelling-house. It, therefore, fairly represents and declares the house to be in all respects fit and suitable for that purpose.

The rule that fraud in the making of a written agreement may be shown by parol evidence, to change its legal effect, is too well established to need any citation of authorities to sustain it. The evidence, however, must be clear, precise and indubitable. Are the facts alleged sufficient, and are they properly averred in the present case, to constitute any defense if true?

In substance the plaintiff in error avers in his affidavit that he was not willing to lease the premises unless he was satisfied that the plumbing and drainage were in first-class order; that he so stated to the lessor, and expressed a determination to send a plumber to examine the same, but the lessor assured him that the well into which the house was drained had been lately dug, that he had a plumber to thoroughly overhaul every thing, and he would guarantee that the sanitary condition of the house was good, and that the drainage and plumbing were as near perfect as they could be, and that any thing wrong with either would be remedied by him at once, and in consideration of those assurances and guaranty, the lessee signed the lease and moved into the house. He further avers that soon thereafter he discovered the drainage to be defective, that the soil-pipe which drained the water-closet in the house also drained the water from the bath-room and the kitchen, and in fact all the wastage and nuisance of the house was drained through one small soil pipe; that it drained into a covered well which had no ventilation or means of ventilation, and which had not been cleaned, as he was informed, for eight years; that the soil-pipe was so old and rotten that the roots of trees had worked their way through defective joints, and had so filled the pipe for thirty feet as to render it impossible for the contents of the water-closet and kitchen sink to pass through it into the well; but the same flowed back into the sink in the kitchen and stationary wash-basins; the well was filled nearly to the top, and in consequence thereof and of the other causes stated, the smell through the house was unbearable; the lessor was notified of these defects and requested to have them remedied, but he refused so to do. That thereupon the lessee employed practical plumbers to remedy the same, which they did at an expense of $53.54, which sum he had paid, and he had also paid the further sum of $53 for cleaning the well. The plaintiff in error further swears that he is informed, believes and expects to prove that the premises in question were well known by the lessor and everybody in the neighborhood to have defective drainage, and by reason thereof they have been unoccupied for a long time, all of which facts he believed to be true, and expected to be able to prove on the trial of the cause.

Thus the building was let to be occupied as a dwelling-house only. If the facts averred be proved on the trial, a jury would be justified in finding it wholly unfit for that purpose. In view of the stench and increasing nuisance caused by its occupation they might perhaps conclude it to be better adapted for a pig-sty than for the habitation of

human beings. The rental agreed to be paid was sufficient to reasonably procure a residence exempt from the nuisances stated. It is averred that this defective drainage was well known to the lessor; that when interrogated in regard to it, he not only declared he had caused it to be thoroughly overhauled, but the drainage, plumbing and sanitary condition of the house were as perfect as they could be made. If at the time of the execution of the lease the lessor had knowledge of the bad condition of the premises, and not only denied it, but falsely represented that the well had been lately dug; that he had had a plumber to put the drainage and plumbing in perfect order, and that the sanitary condition of the house was good; and thereby deterred the lessee from employing a plumber to examine the same, parol evidence of these facts, clearly proved, should be submitted to the jury, from which they may find intentional fraud on the part of the defendant in error.

Judgment reversed and a procedendo awarded.

PENN IRON COMPANY (Limited) v. DILLER FOR USE OF STEHMAN.

October 5, 1885.

EVIDENCE-TESTIMONY TO CONTRADICT A WRITTEN LEASE - DAMAGES-CHARGE OF COURT TO JURY.

An instrument in writing cannot be reformed by the testimony of one interested witness when contradicted by that of another; to accomplish such a result, the testimony of the person in interest for the change must be corroborated by what is equivalent to the testimony of at least an additional witness.

A plaintiff in an action of covenant upon a lease on the trial offered parol testimony to vary the written instrument, and then alleged breaches; the court, in charging the jury, briefly and in substanee told them that if they believed breaches of the written agreement and also breaches of the entire contract, as supported by parol testimony, had been made out, they should give such damages to the plaintiff as the evidence justified. Held to be error; that in all such cases the attention of the jury should be called to the particular breaches alleged ; to the evidence on each side as to the damages claimed to have been sustained; to the character of damages the plaintiff might recover, if any; and when profits are claimed, especially to the legal limitations which affect the right to recover damages for their loss.

Error to the common pleas of Lancaster county.

This was an action of covenant brought by Franklin Diller for use, etc., against the Penn Iron Company (limited), upon a lease of a foundry building. The following is an extract from the written lease: "This indenture, made the day of July, A. D. 1880, between the Penn Iron Company (limited) of Lancaster, Pa., of the one part, and Franklin Diller of the other part, Witnesseth, that the said party of the first part doth, by these presents, lease and let unto the said party of the second part, all that part of the premises of said company on Plum street, Lancaster, and the Pennsylvania railroad, known as the foundry building, space in the yard for necessary stock and materials, the joint use of the pattern shop with the first party hereto, the engine-room adjoining the foundry.

"To have and to hold the premises aforesaid unto the lessee from the 15th day of May, 1880, for the term of one year then next ensuing,

he yielding and paying for the same unto the said lessor, its assigns, the vendor, sum of five hundred dollars, payable monthly.

"It is further agreed that the second party hereto shall pay fifteen cents per hour for the steam furnished to his engine by the first party hereto, and he shall have the right to use the tools in the pattern shop, but in consideration therefor the first party hereto shall have the use, without charge, of the power of the engine of the second party whenever they shall require it in the pattern shop.

At the trial Diller and his son testified that they were together when the arrangement for leasing was made with the superintendent of the company, and it was then understood that the company was to furnish Diller with all the steam he required for fifteen cents an hour, and the joint use of the pattern shop with its tools, and was to give him (Diller) the making of all the patterns they might require at twenty-five cents per hour, in consideration of which Diller was to pay $500 rent. Diller further testified that, in accordance with this understanding, he went into possession of the foundry in May, 1880; that in July following word was sent to him the company wanted him to sign the lease; that he went to the office, when what purported to be a draft of the agreement was handed him; that he, upon taking it, remarked: Gentlemen, does this contain all our agreement, that I am to have all the steam that I require at fifteen cents an hour, and the joint use of the pattern shop and all the tools therein with the company, and the making of all the patterns that the company may require at twentyfive cents per hour?" and the reply was: "Yes, that is all in the agreement," and that he thereupon signed it.

The superintendent testified that he had been instructed to inform Diller he could have the premises on the terms contained in the written lease; that he so informed him and proposed no other terms. Three other witnesses also testified that they were present when the lease was signed, and that Diller looked at it long enough to read it through, and then signed it without asking any questions about the contents of it; he stated, however, that he would like to have a clause containing a waiver of the exemption law stricken out, which was done. The court, in charging the jury, did not explain the character of damages the plaintiff was entitled to recover, if any; but told them, if they believed breaches of the written agreement and of the entire contract, as supported by parol testimony, had been made out, they ought to give such damages to the plaintiff as the evidence justified.

D. G. Eshleman and A. J. Steinman, for plaintiff in error. William R. Wilson, for defendant in error.

GREEN, J. The action in this case was covenant, upon a lease in writing and under seal. The plaintiff alleged and testified that there were parol terms of the contract, which were not included in the instrument, and it was mainly for a breach of these parol terms, that damages were claimed and recovered. The evidence in support of the parol terms was that of the plaintiff alone. There was previous conversation in regard to these terms, as to which he was corroborated by his son.

But when the lease was executed, the son was not present,

and of the five persons who were then present, the plaintiff alone testified to that portion of the alleged agreement which rested in parol. Of the other four, two contradicted him absolutely and positively, one said that the words testified to by the plaintiff were not uttered in his presence, and that he was present at the signing and remembered all that occurred, and the other that he was present, and he heard all that was said, that if the words in question were spoken, he would have heard them, and that he did not hear the words if they were said. The plaintiff was an interested witness and a party to the suit. One of the opposing witnesses was the subscribing witness to the lease and entirely disinterested, not being at the time of his examination even in the employ of the defendant company. The other three were interested, but were not parties except as members of the company. There were no circumstances which corroborated the plaintiff in his statement, that the conversation described by him occurred at the execution of the lease. If such testimony, and in such circumstances, can be permitted to overthrow a solemn written instrument, the rule prohibiting the contradiction of such instruments by verbal testimony may as well be abrogated at once. For since parties are competent witnesses there will always be one witness to testify in support of his own allegation that there was a verbal contemporaneous agreement which relieves him of his liability or enlarges his rights under a written contract signed by himself. We have said many times over that such a result cannot be permitted upon the testimony of one witness contradicted by another unless he is corroborated by other facts which are equivalent to the testimony of an additional witness.

This case goes further than any that have preceded it. The one witness who is himself the plaintiff is not only not corroborated by another witness or equivalent circumstances, but he is contradicted by four living witnesses and by the written contract itself. The inadequacy of the testimony to accomplish the result sought is so patent, so glaring as it were, that we feel it to be quite unnecessary to discuss the subject at any length or to present any array of the decisions. Our brothers, TRUNKEY and PAXSON, have so thoroughly elaborated our views on this entire subject that a further discussion now would be a work of supererogation. Juniata Building and Loan Association v. Hetzel, 103 Penn. St. 508; Phillips v. Meily, 15 W. N. C. 225; North and West Branch Railway Co. v. Swank, 14 id. 444. See, also, Ott v. Oyer, 41 Leg. Int. 459.

On the subject of damages, the learned court below told the jury that if they believed that breaches of the written agreement had been made out, and also breaches of the entire contract as supported by parol testimony they ought to give such damages to the plaintiff as the evidence justifies. There was nothing in the charge to explain what kind of damages the plaintiff was entitled to recover if at all, and there was a question raised by a point as to the right to recover profits on contracts not undertaken and completed. Without any explanation whatever as to the character of the damages the plaintiff might recover. The whole question was thrown into the jury box with practically an unlimited license to find any damages which the jury might think the evidence

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