Appeals, Nos. 139 and 154, March T., 1951, from judgment of Court of Common Pleas of Erie County, May T., 1948, No. 455, in case of Forest R. Taylor v. Henry Kaufhold and Peerless Casualty Company. Judgment reversed as to Peerless Casualty Co.; judgment affirmed as to Henry Kaufhold.
J. V. Agresti, with him Agresti & Agresti and T. P. Dunn, for defendant, Henry Kaufhold, appellant in No. 139.
John E. Britton, with him Gifford, Graham, MacDonald & Illig, and O. J. Graham, for defendant, Peerless Casualty Company, appellant in No. 154.
Frank B. Quinn, with him Howard N. Plate, Quinn, Leemhuis, Plate & Dwyer and Paul A. Stephany, for plaintiff, appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
Suits arising out of the transactions here involved have twice before been before the appellate courts and were offered in evidence in this case; hence the facts covered a wide range and were voluminous. We shall discuss, however, only those facts which we think are pertinent and important.
Taylor, as lessee, on April 1, 1944, entered into a two year written lease with Craig who owned the demised premises but not the restaurant business which was conducted thereon. In the latter part of 1945, Taylor was in ill health and wished to go West for a rest cure and to have his close friend, Kaufhold, operate the restaurant and liquor business which Taylor had been conducting on the demised premises. On November 12, 1945, Taylor and Kaufhold had a meeting with Craig and desired Craig to consent to an assignment of the lease by Taylor to Kaufhold, explaining that the arrangement was merely temporary until Taylor regained his health. Taylor at that time also requested Craig, in the presence of Kaufhold, to make a new lease to him, Taylor, for three years commencing April 1, 1946; and to these requests Craig agreed. That same day, viz.: November 12, 1945, Taylor sold the restaurant business to Kaufhold and assigned to him his (two year) lease, which had 4 1/2 months to run, and shortly thereafter Craig approved in writing this assignment.
On November 15, 1945, Craig, in fulfillment of his oral agreement, entered into a new written lease with Taylor for the same premises, the lease to commence April 1, 1946.
Kaufhold held over after the expiration of the original lease of April 1, 1944. On April 3, 1946, Craig, the owner and landlord, entered an amicable judgment of ejectment against Taylor (his lessee), and issued a writ of habere facias naming Kaufhold, the present
defendant, as terre tenant. Kaufhold then filed a motion to open the judgment; upon the dismissal of his motion, he appealed to the Superior Court of Pennsylvania. In order to perfect that appeal and to have it act as a supersedeas, Kaufhold, as principal, and Peerless Casualty Company, as surety, entered into a bond in the face amount of $5,000. The Superior Court quashed Kaufhold's appeal (Craig v. Taylor, 160 Pa. Superior Ct. 101, 50 A.2d 118); but in the meantime Kaufhold remained in possession of the premises until after the decision of the Superior Court on January 24, 1947. All costs arising out of Craig's ejectment ...