Appeal, No. 200, Jan. T., 1956, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1955, No. 3555, in case of Frank J. Kros et al. v. Bacall Textile Corp. et al. Order reversed.
Wanda P. Chocallo, with her Joseph Sharfsin, for appellants.
Paul Brandeis, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Defendant having obtained a rule to show cause why a judgment which had been entered against it by confession should not be opened, the court below, upon consideration of the rule, instead of either making it absolute or discharging it, struck the judgment from the record.
On November 12, 1954, plaintiffs leased to the defendant corporation a lot and building thereon, excepting certain specified portions thereof, in Hatfield Township, Montgomery County, to be used and occupied as a factory, for a term of one year from December 1, 1954, with an option to defendant to renew the lease for a further period of one year. Defendant duly exercised this option by notice to plaintiffs on September 15, 1955, but on November 20, 1955, the demised premises were totally destroyed by fire, giving rise to the controversy embodied in this litigation.
The lease provided that "Lessee agrees to pay as rent in addition to the minimum rental herein reserved any and all sums which may become due by reason of the failure of Lessee to comply with all of the covenants of this lease and any and all damages, costs and expenses which the Lessor may suffer or incur by reason of any default of the Lessee or failure on his part to comply
with the covenants of this lease, and each of them, and also any and all damages to the demised premises caused by any act or neglect of the Lessee." Another provision was that "Lessee covenants and agrees that he will without out demand ... Use every reasonable precaution against fire." And still another provision that "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." It was further provided that "If rent and/or charges hereby reserved as rent shall remain unpaid on any day when the same ought to be paid Lessee hereby empowers any Prothonotary or attorney of any Court of Record to appear for Lessee in any and all actions which may be brought for rent and/or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the Lessee and/or to sign for Lessee an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Lessee for all or any part of the rent specified in this lease and then unpaid including, at Lessor's option, the rent for the entire unexpired balance of the term of this lease, and/or other charges, payments, costs and expenses reserved as rent or agreed to be paid by the Lessee, and for interest and costs together with an attorney's commission at 5%."
Plaintiffs caused judgment against defendant to be entered in an amicable action of assumpsit, the judgment being confessed by an attorney for defendant under ...