McBrier v. Marshall

Citations

• 126 Pa. 390
• 17 A. 647
• 1889 Pa. LEXIS 885

Syllabus

<p>(а) In an action of assumpsit for rent, the landlord averred that the tenant had elected, under a clause in the lease, to retain the demised premises for a second term of five years, and had paid the rent for the first year of said second term, but had refused to pay the rent, as it became due, for the second year.</p> <p>(б) The tenant in his affidavit of defence denied such election, and averred that at the end of the first term, as the landlord had failed to secure a new tenant, he had retained the premises for one year for his accommodation, and then surrendered them, and further that the landlord had broken his covenant to keep the premises in repair, the defendant “actually sustaining a loss thereby in excess of $2,000.”</p> <p>1. In such case, in the absence of any clear averment of a binding agreement by which the original contract had been abrogated or modified, it was not error in the court below to enter judgment for want of a sufficient affidavit of defence; the allegation of a loss caused by plaintiff’s failure to repair was too vague to constitute a defence, even if such a set-off were admissible.</p>