Appeal, No. 47, Jan. T., 1951, from judgment of Court of Common Pleas of Delaware County, June T., 1949, No. 133, in case of Sun Ray Drug Co. v. Mary A. Lawler et al. Judgment reversed.
Morris Wolf, with him Morris H. Fussell, Leon Solis-Cohen, Jr. and Wolf, Block, Schorr & Solis-Cohen, for appellant.
Russell J. Brownback, with him Roger B. Reynolds, George T. Butler, and Butler, Beatty, Greer Johnson, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
The action here involved is in assumpsit to recover the cost and expense to which the plaintiff company was allegedly put in repairing and restoring a certain business property whereof the plaintiff was lessee
under a written lease from the defendant fiduciaries; the premises were partially destroyed by fire during the term and thereby rendered untenantable.
The lease form provided, inter alia, that "(a) In the event that the demised premises is totally destroyed or so damaged by fire or other casualty not occurring through fault or negligence of the Lessee or those employed by or acting for him, that the same cannot be repaired or restored within a reasonable time, this lease shall absolutely cease and determine, and the rent shall abate for the balance of the term." (Paragraph) "(b) If the damage caused as above be only partial and such that the premises can be restored to their then condition within a reasonable time, the Lessor may, at its option, restore the same with reasonable promptness, reserving the right to enter upon the demised premises for that purpose...."
The plaintiff's complaint avers that, after partial destruction of the leased premises by fire, the defendant lessors, acting by one for their number, "exercised their option and agreed to repair and to restore the premises to their then condition in accordance with the lease terms"; that work on the repair and restoration of the property was accordingly begun by the lessors; that they later refused to complete the work; and that the plaintiff thereupon completed the necessary repairs and restoration at the total cost and expense claimed for in this suit.
The defendants filed preliminary objections to the complaint under Rule 1017 (b) (4), R.C.P. which the learned court below sustained on the ground that the plaintiff relied upon an alleged supplemental agreement or covenant by the lessors to make the specific repairs and restorations for which no consideration was pleaded and ...