Coughenour v. Charles E. Stewart & Co.

Citations

• 44 Pa. Super. 7
• 1910 Pa. Super. LEXIS 113

Syllabus

<p>Actions — Trespass—A ssumpsit — Pleading—Demurrer—Landlord and tenant — Injury to demised premises.</p> <p>1. Where a lease gives the tenant the right to make certain physical changes on the demised premises such as the taking out of partitions in doors from houses and stalls and mangers in a stable and to replace the same at the tenant’s costs, the lessor cannot after the surrender of the premises to him maintain an action of trespass against the tenant to recover damages for the removal of the partitions and other injuries to the demised premises, and introduce evidence of such removal of partitions and injuries. The only remedy of the lessor is an action of assumpsit for a breach of the contract contained in the lease.</p> <p>2. Where in such a case there is nothing whatever in the statement of claim to indicate a contract between the parties, or that the plaintiff intended to try any cause of action but trespass quare clausum fregit, the defendant is not in a position to demur, and the plaintiff cannot allege the failure of defendant to demur as a ground for admitting evidence of the injuries to the demised premises.</p> <p>3. Where in such a case one of the plaintiff’s claims is based upon the cutting of a number of trees, and the defendant alleges that the trees were taken with the consent of the plaintiff on an agreement to pay therefor, it is error for the trial judge to instruct the jury that the plaintiff could recover whether there was such an agreement or not.</p> <p>4. Where in such a case the plaintiff claims damages for the removal of rails, posts and fencing materials, the court should permit the defendant-to show that such injuries were caused by persons whom he had employed, and that he was in no wise connected with the removal of the materials and their improper use.</p> <p>5. Where a plaintiff in an action of trespass quare clausum fregit charges that the trespass had been committed upon a 240 acre farm, portions of which were in the defendant