Appeal, No. 63, April T., 1958, from judgment of Court of Common Pleas of Greene County, March T., 1957, No. 80, in case of Thomas Osso et ux. v. Andrew K. Rohanna, Jr. Judgment affirmed; reargument refused October 9, 1958.
R. Wallace Maxwell, for appellant.
John I. Hook, Jr., with him Scott and Hook, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 281]
The plaintiffs were the owners of a building in Franklin Township, Green County, in this State, on which they had conducted a restaurant business known as Toll Gate Cafe. On July 10, 1953, they sold the business to the defendant, together with the retail liquor license which had been issued to them by the Pennsylvania Liquor Control Board for the premises. On the same day also they leased the premises to the defendant for a term of five years to be computed from July 31, 1953. Following the transfer of the liquor license and an amusement permit by the Liquor Control
[ 187 Pa. Super. Page 282]
Board to the defendant he went into possession of the premises under the written lease. The lease contained the following provision: "This lease can be terminated at the end of any one year by a ninety day written notice of either party ... Parties of the first part agree to repair the outside of said building if needed to make all capital repairs inside. All other inside repairs and any damage caused by the patrons or by operation of the business shall be paid for by the party of the second part."
On or about July 19, 1955 the defendant lessee notified the plaintiffs in writing that he intended to vacate the premises on August 1, 1955. In the notice it was stated that the lease would be terminated "as of the first of August" 1955 because of plaintiffs' failure "to repair the outside of said building" and their failure "to make repairs inside by refusing to install a hot water heater required by the Department of Health which failure to install said heater will cause your said tenant to close his place of business." The defendant paid the specified installments of rent at $75 per month in full to July 31, 1955, and on that date, in accordance with the above notice vacated the premises. Thereupon the plaintiffs brought the present action in which they sought recovery of the remaining rent reserved to the end of the lease, together with damages to the building allegedly caused by the defendant prior to moving from the premises.
At the trial the court limited recovery for rent to the period of one year from July 31, 1955 and directed a verdict for plaintiffs, on that phase of the action, in the sum of $900. The remaining questions were submitted to the jury on proper instructions. The jury under the evidence found that the plaintiffs were not otherwise damaged and their verdict was for $900 and no more. Defendant in his appeal from the judgment
[ 187 Pa. Super. Page 283]
on the verdict contends that judgment should have been entered in his favor n.o.v. He takes the position that he was justified in terminating the lease because of plaintiffs' ...