
    Weighley v. Muller, Appellant.
    
      Landlord, and tenant — Eviction—Improper acts of landlord — Evidence ■ — Damages for wrongful eviction.
    
    1. Under the modem authorities a constructive eviction is sufficient to destroy the relation of landlord and tenant.
    2. The term “eviction” is no longer restricted in its application to its original meaning of eviction by title paramount, or to a total deprivation of the premises by the landlord; any act of the landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under the lease, will amount in law to an eviction.
    3. Where a tenant is charged by his landlord with dishonesty without cause, assaulted and beaten in the presence of his family, ordered from the premises, forbidden to return, threatened with imprisonment, and an outbuilding in which he kept his 'provisions is seized and forcibly locked up by the landlord for some time, the tenant may claim a 'wrongful eviction, and upon his withdrawal from the premises may maintain an action against the landlord to recover the pecuniary interest under the lease of which he was deprived; and he may maintain this action-before the end of the term specified in the lease, inasmuch as his right of action is complete and accrues at once whether the eviction was actual or constructive.
    4. In such a case the tenant’s right of action is not defeated by the fact that on the last day on which he was assaulted he notified the landlord in writing that at the end of the current month he would surrender the premises in compliance with the landlord’s demand. Such an act of the tenant was superfluous, but it could not mislead the landlord, and it could not be construed as a waiver of any of the tenant’s rights.
    Argued May 8, 1912.
    Appeal, No. 139, April T., 1912, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1909, No. 31, on verdict for plaintiff in case of-Seth Weighley v. George C. Muller.
    Before Rice, P. J,, Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass for wrongful eviction. Before Koozer, P. J.
    At the trial it appeared that the plaintiff claimed that the landlord’s conduct towards him was such that he was deprived of the beneficial enjoyment of the leased premises, and that his further stay thereon was a continuing physical danger. He testified that on March 15,1909, -the landlord assaulted him. On the same day he gave a notice in yriting to the landlord that he would immediately surrender the premises in compliance with the latter’s demand, on April 1, 1909. Plaintiff held under a lease dated September 24, 1907, for a term of five years from that date.
    The court charged in part as follows:
    That was served on March 15, 1909, a notice that he would leave on April 1, two weeks afterwards. [Now, I. can’t quiet understand ^why, if the plaintiff felt he was evicted, felt that he had to go off the farm, he would give notice he was going, though I submit to you what meaning there is in it, and say to you as a matter of law that if you accept the plaintiff's statement as to all these altercations and by being ordered off the farm, I mean to say the plaintiff’s evidence, that he was denied and unable to have the beneficial enjoyment of this farm by reason of the frequency of altercations, that you may consider a constructive eviction which would permit the plaintiff to recover damages for such amount as he might have earned during the remaining portions of his lease. That being now, you will understand, on the basis of plaintiff’s testimony and assuming that the defendant is to blame for these altercations and troubles.] [1] If on the other hand you accept the defendant’s testimony and that of his witnesses as to how these various occurrences were, together with the plaintiff’s notice of going off the farm, then when he went off he had no right to ask damages and can recover none at your hands. If he was preparing and marketing milk from the defendant’s farm of an inferior quality and against the defendant’s directions, then the defendant had the right to stop it, and unless he stopped, he had the right to send him from the farm. And if the defendant’s story is true that he was withholding from him the truth about the products of the sugar, the defendant had a right to go and make an examination and inspect the stock, and there was no eviction though he locked the room and kept it locked for a period of two weeks. The mere fact that the defendant told the plaintiff to go off the farm, if he did tell him, is not an eviction, because he did not have to go. [There was no eviction or turning out unless without any fault of his own the conditions were so made by the defendant on that farm as that the plaintiff could not enjoy the beneficial use of that farm during the time he had leased it. If you find he was, under what I have said to you, denied the beneficial use of the farm by reason of the conduct of the defendant, then you would pass on and determine how much that contract was worth to him, how much he might have earned during the remaining period of his lease and award him that amount in damages.] [2]
    Plaintiff presented this point;
    
      5. That if the jury shall find from the evidence, that the defendant Muller during the tenancy of plaintiff, was guilty of improper conduct towards the tenant, such as charging him with dishonesty, with lying, made assaults upon him at various times, and ordered him to leave the premises, and took and retained a part of the leased premises against the tenant’s will, then in law this was an eviction, and plaintiff was justified in leaving the premises. Answer: Subject to what I have said to you, I affirm this point. That is to say, if the defendant had been guilty of the things charged upon him by the plaintiff without fault of the plaintiff, it was an eviction, but as the testimony is flatly conflicting on that question I submit to you to say whether this was the case or not. [3]
    Defendant presented these points:
    1. Under the pleadings and all the evidence in the case the verdict must be for the defendant. Answer: The first point without reading it to the jury is declined. [4]
    2. The plaintiff having on or about March 15, 1909, served a written notice on the defendant that he would leave the premises on April 1, 1909, and the plaintiff having abandoned said premises on that date, this was a surrender of the lease and an abandonment of all rights the plaintiff had under said lease, and extinguishing any claim against the defendant for plowing, hauling manure and alleged damages for breach of contract. Answer: I decline that point as stated, because I am leaving it to you gentlemen to say why the plaintiff went off the farm. You are to find the conditions under which he went off the farm. The mere fact that he served a written notice that he would leave the premises, that fact alone was not necessarily an abandonment of the lease without a right to recover damages, if you find, as I have so frequently before said to you, that he left without any fault of his own, but because of the conduct of the defendant denying him the ■beneficial use of the farm. [5]
    4. Even if the jury believe the testimony of the plaintiff as to the alleged quarrels and assaults on part of the defendant yet these did not amount to an eviction of the tenant from the premises. There were acts separate and distinct from the tenancy for which the plaintiff had a remedy in a different action, and as the plaintiff at a time later than all or any of the alleged assaults and interferences served a written notice on the defendant declaring his intention to terminate the tenancy, and in pursuance thereof did surrender possession of the premises, therefore the plaintiff cannot in this action recover damages for the alleged breach of contract: Answer: I decline to affirm that point. I have already told under what conditions you may find damages and under what conditions you must refuse them, accordingly as you find the facts from the testimony. [6]
    Verdict and judgment for plaintiff for $191. Defendant appealed.
    
      Errors assigned amongst others were (1-6) above instruc-. tions, quoting them.
    
      Chas. F. Uhl, Jr., with him Ernest O. Kooser, for appellant.
    — Taking all the testimony as given by the plaintiff’s witnesses, these acts at most amounted to mere trespasses and not even such an eviction as would relieve the tenant from payment of rent; much less render the landlord hable in an action for future profits, as is the condition sought to be imposed on the landlord in this case: Upton v. Townend, 17 C. B. 30; Bartlett v. Farrington, 120 Mass. 284; Vatel v. Herner, 1 Hilt. (N. Y.) 149; Edgerton v. Page, 1 Hilt. (N. Y.) 320; Bennet v. Bittle, 4 Rawle, 339; Ogilvie v. Hull, 5 Hill (N. Y.), 52; Tiley v. Moyers, 43 Pa. 404.
    Then the tenant not only took the precaution to have the written notice served upon the landlord, but took with him a witness so as to be prepared to establish the fact, this, we contend, was such a surrender of the premises, such an acceptance of the termination of the lease, as to terminate all relations between the parties growing out of the lease and deprived the tenant of the right to recover any alleged damages for breach of contract: Carnegie Natural Gas Co. v. Philadelphia Company, 158 Pa. 317; Schnuth v. Aber, 13 Pa. Superior Ct. 174; Ely v. Wain, 1 W. N. C. 248; Reaney v. Fannessy, 14 W. N. C. 91; Magaw v. Lambert, 3 Pa. 444.
    The testimony showed that the tenant abandoned the demised premises on April 1, 1909, although the lease under which he had been in possession would have continued for a period of over three years and the right of action for loss of profits would not accrue until the expiration of the term in 1912. The suit was commenced some time during the summer of 1909 and therefore the action was prematurely brought: Menough’s App., 5 W. & S. 432; Boyd v. McCombs, 4 Pa. 146; King v. Bosserman, 13 Pa. Superior Ct. 480.
    
      Valentine Hay, with him A. L. G. Hay, for appellee.—
    Actual physical expulsion is not necessary to constitute eviction, but constructive eviction produces the same results: Hoeveler v. Fleming, 91 Pa. 322; Oakford v. Nixon, 177 Pa. 76; Gallagher v. Burke, 13 Pa. Superior Ct. 244; McSorley v. Allen, 36 Pa. Superior Ct. 271; Doran v. Chase, 2 W. N. C. 609; Magaw v. Lambert, 3 Pa. 444; Schienle v. Eckels, 227 Pa. 305.
    Whether there has been such an eviction in point of fact is a question for the jury: Bennet v. Bittle, 4 Rawle, 339.
    We deny that the action was prematurely brought. If there was an eviction actual or constructive, the tenant’s right of action accrued at once and it was complete.
    July 18, 1912:
   Opinion by

Orlady, J.,

The appellant fairly presents the question involved by the inquiry whether the alleged acts of the landlord amounted to such an eviction as justified the tenant in removing from the premises, and rendered the landlord hable for loss of profits for the remainder of the term, and whether the acts of the lessee constituted an abandonment and surrender of the lease.

While the earlier cases held that physical dispossession or actual disturbance in the possession of the tenant was necessary to constitute a breach of the covenant for quiet enjoyment, the great weight of authority now is that a constructive eviction is sufficient to destroy the relation of landlord and tenant. If the tenant is entitled to the beneficial enjoyment of the preñases under the terms of his lease, and if he is deprived of this by the act of the landlord it amounts to an eviction, and will suspend the rent. The term “ eviction ” is no longer restricted in its application to its original meaning of eviction by title paramount, or to a total deprivation of the premises by the landlord; any act of the landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under the lease, will amount in law to an eviction: McSorley v. Allen, 36 Pa. Superior Ct. 271; Schienle v. Eckels, 227 Pa. 305; Jackson and Gross, 220.

Whether there was an eviction in point of fact was for the jury, and this question was fully and fairly presented in the charge of the court.

The evidence adduced by the plaintiff warranted the jury in finding that this landlord persisted in a course of conduct toward his tenant, and the property, that not only deprived him of the beneficial enjoyment of the premises, but made his further stay on it a continuing physical danger. He was charged with dishonesty without cause, assaulted and beaten in the presence of his family, ordered from the premises, forbidden to return and threatened with imprisonment. An outbuilding in which the tenant kept his meat, flour, and sugar was forcibly taken possession of and placed under lock and key by the landlord who retained it for a number of days.

The testimony affecting these facts was contradictory, but it was fairly submitted to the jury in the general charge and the answer to the plaintiff’s fifth point.

While this controversy was at its height the tenant gave a notice in writing on March 15, viz.: "That whereas you have been interfering with my peaceful occupancy of the premises which I hold under lease from you by agreement, and you have this day ordered me to leave said premises, you will take notice that I will leave and surrender said premises in compliance with your demand, on April 1, 1909.” It is urged that this was a voluntary surrender and abandonment of the premises and lease and all rights thereunder, and extinguished any claim of the tenant. The intention of the parties and their conduct in relation to it, under the facts and circumstances surrounding them at the time, was for the jury. Manifestly it was ■in the interest of the landlord to know that on a day certain in the near future he could have peaceable possession of the property, so as to arrange for a new and more desirable tenant. There is nothing in the notice to indicate that the tenant was waiving any right founded on the facts as he claimed them to be. It was a superfluous act, and did not mislead the landlord or weaken or strengthen the case of the tenant.

If the tenant was evicted by the landlord or by acts equivalent to an eviction was deprived of his pecuniary interest under the lease, he was entitled to recover as damages the loss suffered by him — to be put in the same position pecuniarily as he would have been if the contract, had been kept — when the damages are the natural result of such breach of the contract and can be ascertained-with reasonable certainty: Hoy v. Gronoble, 34 Pa. 9; Garsed v. Turner, 71 Pa. 56; Clyde Coal Co. v. Railroad Co., 226 Pa. 391.

Under the finding by the jury the action was not prematurely brought, as the tenant’s right of action was complete and accrued at Once whether the eviction was actual or constructive.

The judgment is affirmed.  