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EMERY ET UX. v. METZNER. (12/17/59)

December 17, 1959

EMERY ET UX., APPELLANTS,
v.
METZNER.



Appeal, No. 139, April T., 1959, from judgment of Court of Common Pleas of Washington County, Feb. T., 1958, No. 16, in case of B. Irwin Emery et ux. v. Albert D. Metzner et al. Judgment reversed.

COUNSEL

Charles C. Keller, with him Peacock, Keller & Yohe, for appellants.

Sanford S. Finder, for appellees.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Ervin

[ 191 Pa. Super. Page 442]

OPINION BY ERVIN, J.

This appeal relates to the interpretation of a contract of indemnity.

On April 17, 1950 B. Irwin Emery and Margaret R. Emery leased from Maurice A. Yorkin et ux. et al., hereinafter called original lessors, three lots of ground on which was erected a building, for a term of 10 years, the lease containing a privilege to assign the same to Main Buick, Inc. In accordance with that privilege the lease was assigned to Main Buick, Inc. on May 1, 1950. Prior to March 19, 1952 B. Irwin Emery and Francis I. Albert were stockholders in Main Buick, Inc. On that date Emery sold his stock therein to Albert D. Metzner. On September 16, 1953, Main Buick, Inc. made a partial assignment of said lease to Alvin Chiri for a term of three years with the privilege of renewing the same for another additional period of three years. Chiri was to pay the rentals directly to the original lessors. The renewal privilege in the said lease provided that the said Alvin Chiri was to give notice of his intention to exercise that privilege to Main Buick, Inc. 90 days before the expiration of the said original term of three years. It also provided for a 10 per cent increase in rental, the differential to be paid to Main Buick, Inc. Alvin Chiri did not

[ 191 Pa. Super. Page 443]

    give notice of an intention to renew the lease but he remained in possession of the said premises for the original term of three years and for an additional period of time until May 31, 1957. He paid his rent until and including the month of May 1957, when he vacated the said premises. The present action was brought by the plaintiffs herein to recover from the original defendants the rentals admittedly paid by them to the original lessors for the months of June through November 1957 plus taxes and insurance which became due during that period. The claim of the plaintiffs is based on a contract of indemnity executed by Albert D. Metzner and Dora Metzner, his wife, and Francis I. Albert and Margaret J. Albert, his wife, in connection with securing the consent of B. Irwin Emery and Margaret R. Emery to the assignment of said lease from Main Buick, Inc. to Alvin Chiri.*fn1 The material part of that indemnity agreement

[ 191 Pa. Super. Page 444]

    is as follows: "Now THEREFORE, in order to induce B. Irwin Emery and Margaret R. Emery to approve the making of a lease by Main-Buick, Inc. to Alvin Chiri, the undersigned hereby jointly and severally covenant and agree that they will at all times hereafter indemnify B. Irwin Emery and Margaret R. Emery against all claims against them or either of them or on account of any rental payment which they may be required to make for said lot of ground with building erected thereon to the owners thereof in accordance with the terms of said lease and against all costs and expenses which they or either of them may be put in connection with defending any action, claim or demand for such rental."

Procedurally, this case was before the court below on the motion of the original defendants for judgment on the pleadings. The plaintiffs, B. Irwin Emery and Margaret R. Emery, his wife, filed their complaint against Albert D. Metzner and Dora Metzner, his wife, and Francis I. Albert and Margaret ...


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