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ROTH ET AL. v. GOLDEN SLIPPER RESTAURANT & CATERING (11/14/50)

November 14, 1950

ROTH ET AL.
v.
GOLDEN SLIPPER RESTAURANT & CATERING, INC. ET AL.



COUNSEL

Gabriel Berk, Irvin J. Kopf, Philadelphia, for appellants.

Joseph Skale, Philadelphia, for appellees.

Before Rhodes, President Judge, and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, Judges.

Author: Ross

[ 167 Pa. Super. Page 559]

ROSS, Judge.

This is an appeal from a summary judgment entered in favor of the plaintiffs in an assumpsit action.

The action was brought to recover $1200, representing rent paid in advance by the plaintiffs as tenants to the defendant-lessor corporation. The individual defendants are alleged to have guaranteed payment of the $1200 by the corporation. The plaintiffs' case is based upon the following averments in the complaint: On March 14, 1949, the defendant corporation and the plaintiffs entered into a written lease agreement under which the defendant, which conducts a cabaret and catering business, did 'lease, give and grant' to the plaintiffs 'the hat check concessions and the right to sell cigars, cigarettes, toys and novelties and to take photographs in said cabaret and at the banquets to be held in said premises'. The plaintiffs, for their part, agreed 'to conduct the hat checking privileges in an efficient, dignified and orderly manner'. The agreed rental for the two-year term was $3,600, payable in the sum of $3,000 upon the execution of the agreement and $600 payable on February 1, 1950. By paragraph 6 of this lease the plaintiffs were given the 'right and option to terminate' the agreement by giving written notice to the defendant-lessor not later than December 15, 1949, in which event, and upon the plaintiffs' vacating the premises by February 14, 1950, the defendant agreed to 'refund and pay to the tenants' the sum of $1200 'upon demand'.

[ 167 Pa. Super. Page 560]

Plaintiffs aver the giving of notice as required in paragraph 6 of the lease, and a refusal of the defendant to refund the $1200. They do not, however, aver that they vacated the premises by February 14, 1950 -- a condition precedent to their right to the refund -- and if it were necessary, this appeal might well be decided upon the plaintiffs' failure to make this material averment.

The defendants' answer admitted the making of the lease, a timely and proper request for a refund, and a refusal by the defendant-lessor to make the refund as it had agreed to do in paragraph 6 of the lease agreement. Defendants' answer, however, avers that the plaintiffs are not entitled to the refund because they 'violated the terms of the agreement in that they failed to conduct the hat checking privileges in an efficient, dignified and orderly manner'. It is further alleged that the 'plaintiffs absented themselves from the premises for unreasonable periods of time, all to the detriment of the defendants' business'. To this answer the plaintiffs filed preliminary objections, based primarily on the contention that the alleged violation of the lease by them would not be a defense to the repayment of the $1200. The court below sustained the objections and without giving defendants an opportunity to amend their answer, entered judgment against them, and they took this appeal.

The first question for our determination is whether a breach of plaintiffs' agreement to conduct the hat checking privileges in an 'efficient, dignified and orderly manner', if proved, entitles the defendant-lessor to retain the advance rent. It is our conclusion that this question must be answered in the negative. Covenants in leases are mutually independent unless in terms expressly conditional. 'Nonperformance of a covenant by one party to a lease or other conveyance of land, unless performance of the covenant is an express condition,

[ 167 Pa. Super. Page 561]

    does not excuse the other party from performing his covenants. * * *' Restatement, Contracts, sec. 290. See also Williston on Contracts, sec. 890, and McDanel v. Mack Realty Co., 315 Pa. 174, 172 A. 97. An examination of the covenant upon which the plaintiffs have based this action discloses that their right to the refund is expressly conditioned only upon the giving of notice and vacating the premises before a certain date. There is in the lease no basis for finding that the plaintiffs' right to the refund is ...


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