
    Jawer v. Borner, Appellant.
    
      Landlord and tenant — Written lease — Notice to quit — Waiver of notice — Increase of rent — Continuance of existing lease.
    
    
      * Where a tenant in possession under a written lease for one year, with renewal clause from year to year, receives notice to quit, the fact that he is permitted to remain for another year at an agreed increase of rent, in the absence of proof of any agreement for a new term, must be regarded as a withdrawal of the notice, and a continuance of the existing lease at the new rent.
    Argued January 12, 1922.
    Appeal, No. 140, Jan. T., 1922, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1921, No. 1050, discharging rule to open judgment, in case of Fannie E. Jawer v. A. Carl Borner.
    Before Moschzisker, C. J., Frazer, Walling, Kephart and Schaefer, JJ.
    Affirmed.
    Buie to open judgment entered on warrant in written lease, for one year, with renewal clause from year to year. Before Ferguson, J.
    
      The opinion of the Supreme Court states the facts.
    Rule discharged. Defendant appealed.
    
      Error assigned was above order.
    
      J. Quincy Hunsicker, with him Edward H. Cushman, for appellant,
    cited: Henderson v. Clay Mfg. Co., 24 Pa. Superior Ct. 422; Fidelity Trust Co. v. Lee, 38 Pa. Superior Ct. 330.
    
      Owen J. Roberts, with him George G. Chandler, for appellee.
    February 6, 1922:
   Per Curiam,

We adopt the following excerpts from the opinion of the court below, discharging a rule to open a judgment entered by confession, on a warrant contained in a written lease: “The petition......avers that, on or about February 25,1920, the then landlord entered into a parol lease of the premises in question, for a term of three years, beginning May 15, 1920......Defendant’s evidence is to the effect that......, after a notice to terminate the existing tenancy on May 15, 1921, had been received by him, a parol agreement was entered into for the execution of a new lease for three years, the only other term agreed upon being the amount of the rent, which was to be at the rate of $10 per month more than the rent defendant was then paying. When the new lease was to commence was not shown; this is greatly at variance with the averment of the petition [in support of the relief asked], and, in itself, is sufficient to justify us in discharging the rule. We are not convinced, however, that......an agreement [for a new period of three years] was made. There was discussion touching a new lease, which never, verbally or otherwise, was reduced to definite terms. The fact that the tenant was permitted to remain for another year, at an [agreed] increase of rent [in the absence of proof of the alleged agreement for a new term of three years, depended on by appellant] must be regarded as a withdrawal of the notice and a continuance of the existing lease [at the new rent].”

For correct statements of the ruling principles involved, see Walker v. Githens, 156 Pa. 178, 180; Whitehill v. Schwartz, 27 Pa. Superior Ct. 526, 529; see also opinions by Judge Allison in Taylor v. Winters, 6 Phila. 126, and by Judge Stroud in Pittfield v. Ewing, 6 Phila. 455, 457, 458. The following cases, from other states, also are enlightening: Higgins v. Halligan, 46 Ill. 173, 180, 181; Amsden v. Floyd, 60 Vt. 386, 390; Despard v. Walbridge, 15 N. Y. 374, 376; Schuyler v. Smith, 51 N. Y. 309, 313; Adriance v. Hafkemeyer, 39 Mo. 134, 135; Moore v. Harter, 67 Ohio 250, 253. Abrams v. Sherwin, 269 Pa. 31, 33, is readily distinguishable in its facts from the case at bar.

The order appealed from is affirmed.  