Walter J. Wagner, Pittsburgh, for appellant.
Walter W. Riehl, Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold, and Gunther, JJ.
[ 168 Pa. Super. Page 490]
Defendant appeals from the refusal of the court below to open a judgment confessed upon warrant of attorney for rentals due under a lease.
In 1938 plaintiff leased premises in Pittsburgh to the Sun Oil Company for a ten year term at a monthly rental of $120, with optional renewals. The plaintiff agreed to construct a building thereon for filling station purposes. The Oil Company then leased back the same premises to the plaintiff, who executed an agreement that he would sell only its products. This is known as a 'washout' transaction, evidently made to control the sale of the petroleum products of the Oil Company.
On August 2, 1947, in consideration of $3,400, plaintiff agreed to sell to defendant, clear of all encumbrances, all the service station, business, stock and equipment. He agreed to rent the land and building to the defendant for $220 per month, and gave him an option to buy the same for $30,000. The defendant paid some $1,365 for the stock and petty cash.
On August 6, 1947, plaintiff took defendant to the Oil Company and defendant there entered into a lease for the premises with that Company for a term ending in August, 1948, at a monthly rental of $120. This replaced the lease which the Oil Company had given to the plaintiff. Defendant and the Oil Company also executed a products agreement similar to that which the plaintiff had had.
After executing the lease with the Oil Company, but on the same day, plaintiff and defendant entered into a lease of the premises for a term ending August 8, 1948, at a monthly rental of $100. This instrument provided:
[ 168 Pa. Super. Page 491]
'This lease subject to the terms of the Sun Oil Company lease drawn up for the same period and in consideration of leasing the station from above lessor tenant agrees to pay 100 per mo. as specified above.' (Italics supplied). Automatic renewals for one year periods were provided if the lessee remained in possession (under the Sun Oil Company lease).
Defendant retained possession until the Oil Company cancelled its renewal lease with him in December, 1949. He was not evicted by the Oil Company, but declined to pay further rent to the plaintiff after April, 1949, and after the expiration of the term plaintiff confessed the monetary judgment aforesaid. ...