Keown v. Mallissee

Citations

• 57 Pa. Super. 592
• 1914 Pa. Super. LEXIS 241

Syllabus

<p>Landlord and tenant — Holding over — Trespass—Damages—Injunction.</p> <p>1. Where a tenant holds over after the termination of his lease, and the landlord obtains a judgment of ouster against him in proceedings under the landlord and tenants act to recover possession, the recovery of the judgment indicates an election on the part of the landlord to consider the occupant as a trespasser, and thereafter the landlord may maintain an action of trespass to recover damages for the use and occupation of the land from the date of a judgment of ouster; and the fact that after the judgment of ouster was entered the tenant secured a preliminary injunction to stay further proceedings, and that the injunction was dissolved on final hearing, will not defeat the landlord's right to maintain the action of trespass or force him as his only remedy to bring an action on the injunction bond.</p> <p>2. In such a case where it appears that the tenant holding a mortgage on the premises had foreclosed the mortgage, and in the foreclosure suit the landlord had set up as a counterclaim the same damages which he claimed in the action of trespass, and the court had disallowed the claim as not a proper set-off inasmuch as it was in tort, such adjudication in the foreclosure suit is not an adjudication of the cause of action set up by the landlord in his trespass suit.</p> <p>3. In an action of trespass brought by a landlord to recover damages for a wrongful holding over, a judgment will not be reversed because the plaintiff offered some evidence as to the damaged condition of the property without placing value on the damage, where it appears that the trial judge expressly limited the recovery to the rental value, and the verdict indicated that the jury had followed such instruction.</p>