William J. Krzton and Albert G. Brown, Pittsburgh, for appellants.
Seymour H. Weiss, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 216]
This is an action of assumpsit to recover damages for breach of a covenant contained in a deed from defendant to the plaintiffs. After trial by the judge without a jury, judgment was entered for the defendant on a question of law, and the plaintiffs appealed.
The defendant was the owner of a building composed of three storerooms, and in 1940 conveyed the
[ 172 Pa. Super. Page 217]
end storeroom to the plaintiffs, who had previously occupied it as his tenant. The deed provided: 'Grantees are to receive heat from the center [storeroom] or Mr. Stone [the defendant's tenant-occupant of the center] as long as the building remains and agree to pay for one-third of the coal.' The entire building was heated from the center storeroom. Heat was provided for the plaintiffs until the end of 1943, when Mr. Stone, the tenant of the center portion of the premises, vacated the same. Defendant having entered the army, the plaintiffs thereafter asked his agent about the supply of heat. The agent wrote to inquire what was to be done and was advised by the defendant to 'use your own discretion.'
Defendant also testified: 'When I sold him this building * * * he said, * * * 'what are you going to do about heat?' and I said, 'To be fair to you, you can receive heat from the center of the building or Mr. Stone,' and he said, 'How about putting it down in writing?' * * *' He further testified that he told plaintiffs, 'You can have heat from the center of the building, receive heat.' Defendant was asked, 'You intended as long as you had the building you would rent * * * [it] and make the tenant who took that center section agree to supply heat to Mr. Markides?' and he answered, 'That's right.' He further acknowledged the execution of a receipt for the down payment which contained the same provision as the deed.
Plaintiffs testified that it was intended that the defendant supply heat, but the latter contends that it was only an agreement that the plaintiffs could have heat if they and the tenant of the center storeroom 'got along,' i. e. only if the tenant was willing to permit it.
The lower court determined that the provision was too uncertain to permit ...