Jackson v. Stewart

31 Pa. Super. 58, 1906 Pa. Super. LEXIS 153

• Court: Superior Court of Pennsylvania
• Decided: May 14, 1906
• Docket: Appeal, No. 123
• Status: Published

Opinion

Opinion by

Henderson, J.,

The defendants seek to avoid the obligation of their lease on the allegation that the demised building was not habitable. The defect complained of was dampness. The lessees examined the premises before executing the lease. The dampness was attributed by the witnesses in part to the location of the house; in part to water flowing into the first floor during a heavy rain in the summer after the lessees took possession. A retaining wall became dilapidated during the defendants’ occupancy and the testimony suggests the inference that the condition of the wall may have contributed to the flow of water into the house at the time referred to. The condition of the wall is not a legal ground for relief, however, as the lessees covenanted to make all necessary repairs at their own expense. After having bad an opportunity to inspect the premises the appellants are not in a situation to complain that the location of the house was such as to create dampness; nor does the statement of the agent that he thought the dampness discovered by one of the defendants was owing to the fact that the house had been closed relieve the defendants from the responsibility imposed upon them by the examination made. There being no provision in the lease for repairs by the lessor a tenant cannot defend against the payment of rent on the ground that the premises are not in a tenantable condition : Kline v. Jacobs, 68 Pa. 57 ; Huber v. Baum, 152 Pa. 626; Reeves v. McComeskey, 168 Pa. 571. If the dampness was due, as alleged by one of the defendants’ witnesses, to “ a very heavy rain in the summer and the water settled at the front of the house and at the back of the house ” the condition was one for which the landlord was apparently not responsible and one which the defendants might as easily anticipate as the owner. The defendants leased with their eyes open as to the location of the house and it does not appear from the evidence that its- condition changed after the execution of the lease except as it may have been affected by the heavy rain referred to.

The defendants did not relieve themselves from their covenant by leaving the key of the house at the office of the plaintiff’s agent. If the landlord had accepted the key such act would have amounted to a dissolution of the tenancy unless he informed the tenants that he would hold them for the rent. There is no evidence, however, that the key was accepted or that the landlord by any act released the tenants. The defense set up is insufficient in law and the rule to open the judgment was properly discharged.

The decree is affirmed.