Biddle v. Cohen

similar method to obtain a new lease when the notice to quit was given in 1919. A new lease was then executed, as late as May 5, 1919.

If the notice was in the alternative, what rent was the defendant to pay if he accepted the alternative offer? How long was the tenancy to continue, and what were the terms of the new contract? The notice, or verbal declaration, is wholly silent upon these questions and is unlike the notice to quit in Byrne vs. Funk, 13 W. N. C., 503. In the latter case the tenant was given an option to remove or remain at a specific increase of the rent. The effect of an alternative notice to quit or pay an additional sum named as the increased rent was carefully discussed in the note under O'Neill vs. Cahill, 2 Brewster, 357. "A notice to quit, otherwist sufficient, is not invalidated by an additional clause increasing the rent, if the tenant remains in possession of the premises after the day mentioned"; 24 CYC, page 1333.

Again, even if the notice to remove was insufficient, the defendant by pleading a new lease waived any defect in the notice to quit. He now claims to hold possession, not because the old lease survives, but because the plaintiff made a new verbal contract with him for a tenancy of another year. A new lease after a notice to remove is served, is a withdrawal or waiver of the notice to quit,-Supplee vs. Timothy, 124 Pa., 375; Brown vs. Montgomery, 21 Pa. Superior Ct. 262.

Does the evidence show that a new lease was made?

The defendant asserts that new verbal lease was made, and the plaintiff absolutely denies this. It is oath against oath. The defendant has no corroborating evidence. He submitted some acts on his part, after the date of the alleged parole lease, but they are, at most, nothing more than self serving transactions. On the other hand, the plaintiff called his clerk, Miss Aiman, who testified that she heard numerous requests made by the defendant for a new lease and that the plaintiff always answered "he would see the defendant later."

What were the terms of this alleged verbal lease? All that we have in reference to it is found in the defendant's evidence,that the plaintiff said "he would give me a yearly lease at $85 a month and I agreed to it." No conditions, covenants or restrictions of any kind were named, and yet the plaintiff was most

Biddle v. Cohen

careful in his prior written lease to impose numerous terms that were very exacting. He had iron clad written contracts that imposed various duties on the tenant. These written leases disclose that Mr. Biddle was most careful in protecting himself against any defaults on the part of the tenant, and it is not reasonable to conclude that he would enter into an alleged parole contract where all his prior stipulations and safeguards were ignored.

This parole lease, in effect, attacks the written notice to quit and, if the defendant's contention is sustained, the written notice is made null and void by his oath alone, although contradicted by the plaintiff.

The burden is upon the defendant to get rid of this pending written notice to quit;-Gibson vs. Vetter, 162 Pa., 26. The evidence must not be vague and unsatisfactory, especially when it is contradicted by the sworn testimony of the other party;— Duffy vs. Kaufman, 18 Pa. Superior Ct., 362.

"It is a mistake to suppose that the Court to which such an application is made can not judge of the weight of the evidence and the credibility of the witnesses but in every case, where there is a conflict of testimony, must send the case to a jury. This is so well settled as not to require the citation of authorities";-Duffy vs. Kaufman, supra.

But if we give to the defendant's testimony all the weight that his words can imply, we have no more than a promise, on the part of the plaintiff, that he will in the future give to the defendant a yearly lease. This is clearly shown by the defendant's testimony, when he declares that the plaintiff said "he would give me a yearly lease."

The plaintiff does not deny that he promised to lease the property to the defendant, but he always added the proviso, unless he succeeded in selling it.

The contract of sale to the outside party does not, upon a careful examination of the same, in any way contradict this declaration of the plaintiff. True, he offered to the defendant a lease from month to month, after he had sold the property, but this was consistent with the provisions in the agreement of sale.

If the defendant had a promise that the plaintiff would give him a yearly lease, and the plaintiff now refuses to make good

VOL. XXXVI-No. 27

Biddle v. Cohen

such promise, the defendant's remedy, if any, is an action for damages for the breach of the contract;-McCafferty vs Griswold 99 Pa., 270.

Any such claim for damages is no defense to the pending proceedings to regain possession of the store and dwelling.

The acceptance of a check by Miss Aiman for one month's rent does not operate as a withdrawal of the notice to quit where the lessor returned the check as soon as he learned of the mistake of his clerk;-Fitzpatrick vs. Childs, 2 Breaker, 365.

And now June 4th, 1920, the rule is discharged.

Court of Common Pleas of Montgomery County

Graber et al v. Thomas et al

A bill was filed for an order directing the conveyance of certain real estate to the executors of decedent. The facts as shown by the evidence are these: That decedent was trustee under the will of A and that he in his life time made a conveyance of certain property to himself, as trustee, under said Will of A.

There appears from the record that the fund that came to hands of said trustee was $4750 whereas the value of the real estate taken in the name of the trustee was $12.000. The only rights that the succeeding trustee under the Will of A has in the property conveyed to decedent as trustee are for a payment to him as succeeding trustee of the amount of said trust fund, and upon payment of the amount of trust fund with accrued interest from the date of death of decedent the trustee is ordered to deliver a Deed of said properties to the executors of decedent's estate.

Equity

No. 1, April Term, 1920

Henry Freedley, Atty. for Complainants.

Thomas Hallman, Atty. for Defendants.

Opinion by Swartz, P. J., May 27, 1920.

The bill was filed for an order directing the conveyance of certain real estate to the executors of the said James D. Graber, deceased, the ownership of the properties being in the said estate of James D. Graber, subject to the payment of a trust fund of $4750. created under the will of Daniel S. Shade, deceased.

Graber et al, v. Thomas et al.

The bill was filed for the further purpose to require the payment of the said trust fund to Edwin R. Thomas, who was appointed the successor in the trust upon the death of James D. Graber, and also to remove a cloud upon the title of the estate of James D. Graber, deceased, to said real estate.

FINDINGS OF FACTS

The facts relating to the questions involed are not in dispute. They are fully set forth in the bill and the answer admits them as fully as they are alleged.

1. Under the will of the said Daniel S. Shade a trust fund of $5,000. was created. The interest thereof was to be paid to Emma E. Graber, the wife of the said James D. Graber, during her lifetime, and at her death the principal sum was to be paid to her children and in default of issue then to be disposed of as in said will fully provided. See Exhibit "D" attached to plaintiff's bill. The executors of the will were named as trustees to care for this fund. Two of the executors, after the settlement of their account, resigned the trust by leave of the Orphans' Court, and the remaining trustee, the said James D. Graber, received the fund, less the collateral inheritance tax.

The trust fund of $4750. passed into the hands of the said remaining trustee about February 15, 1900.

2. James D. Graber made his will on February 20, 1909. He appointed his wife, the said Emma E. Graber, his son Henry Graber, and the Royersford Trust Company the executors and trustees of his will. He makes no mention, in his will, of the trust fund of $4750. He died on October 6, 1919.

3. On February 13, 1918, the said James D. Graber and his wife Emma E. Graber entered into an agreement that the husband should receive the interest of the said trust fund for his own use, and that she would not make any claim for the same. See Exhibit "B" attached to plaintiffs' bill.

4. On February 14, 1918, for the purpose of securing the eventual payment of the said trust fund, the said James D. Graber and his wife executed a deed to himself, as trustee under the will of Daniel S. Shade. The conveyance was in fee simple for two properties, one situate in Spring City, Chester County, the other in Royersford, Montgomery County. The consideration named in the deed is $6,000, but in fact no money whatever passed to the grantors.

Graber et al, v. Thomas et al.

In like manner, on May 27, 1918, a deed was made to James D. Graber, trustee under the will of Daniel S. Shade, for certain other properties situate in Montgomery County. These messuages and lands are fully described in paragraphs four and five of the plaintiffs' bill. No money passed to James D. Graber or to his wife Emma as a consideration for these conveyances. Before such transfers the said James D. Graber was the owner in fee of all these properties.

5. James D. Graber remained in full possession of all these lands and tenements, so conveyed, to the date of his death.

6. On July 18, 1918, James D. Graber, as trustee under the will of Daniel S. Shade made a declaration that he held certain properties in Chester and Montgomery counties under the trust aforesaid. He directed, in this writing, that his executors, the said Emma E. Graber, Henry Graber and the Royersford Trust Company, should dispose of said properties to raise a sufficient sum, to-wit, $4750, and invest the same in ample securities to pay the interest to his wife and the principal as provided in the will of Daniel S. Shade, deceased. Whatever funds were raised from such sales, in excess of the $4750., the said executors were to pay to his individual executors or to his individual estate. See Exhibit "C" attached to plaintiffs' bill.

The properties described in the deeds of February 14, 1918, and May 27, 1918, were worth at the time of the conveyance to himself as trustee, $12,000.

7. On February 3, 1920, the Orphans' Court appointed Edwin R. Thomas trustee for Emma E. Graber under the will of Daniel S. Shade, to fill the vacancy occasioned by the death of James D. Graber, the trustee named in the said will.

8. The executors of the estate of James D. Graber are ready and willing to pay to the said Edwin R. Thomas, the successor in the trust, the said sum of $4750. provided the real estate described in the said bill and still remaining upon the records in the Recorder's office, as the property of James D. Graber, trustee, under the will of Daniel S. Shade, shall be freed, discharged, and released from any and all liability for the said trust fund of $4750.

The said Edwin R. Thomas, trustee as aforesaid, is ready and willing to execute any deed, release, or discharge that may be necessary to vest in the executors of the estate of James D.