
    Vorndran v. Franz, Appellant.
    
      Landlord and tenant — Agreement to pay water rent — Lease—Interest.
    
    Where an owner of two contiguous lots on one of which he resides, and on the other of which is located a factory, leases the factory under a lease by which the lessee covenants to pay for water used in the factory, and the lessor is compelled to pay a water rent bill charged up against the factory lot, he can recover such payment from the lessee.
    In such a ease where the plaintiff claims in the same suit interest on a note, but tbe jury returns a verdict for the exact amount of the water charge, without allowing the interest, the fact that a claim for interest was made but not sustained does not prejudice the defendant.
    Argued Dec. 14, 1915.
    Appeal, No. 82, Oct, T., 1913, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1912, No. 3359, on verdict for plaintiff in case of John Yorndran v. Charles F. Franz, Jr.
    Before Bice, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    At the trial it appeared that the plaintiff claimed to recover water rent which he had been compelled to pay for a number of years for water used in a factory leased to the defendant by the plaintiff. The lease contained a covenant on the part of the defendant to pay the water rent for water used in the factory. The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $42.40. Defendant appealed.
    
      Errors assigned were (1) in admitting the water rent bills, and (3) in refusing binding instructions for defendant.
    
      Roland R. Foullce, for appellant.
    
      A. B. Repetto, of Repetto & Gandolfo, for appellee.
    March 1,1916:
   Opinion by

Henderson, J.,

The plaintiff was the owner of lots 2015 and 17 on North Hancock street, in Philadelphia, on the rear part of which was a building called a factory. He leased the factory and part of a stable to the defendant. The lease contained the following provision: “And the said parties to this agreement hereby covenant and agree that he, the said Charles Franz, Jr., shall also pay all charges for water rent which are to be paid for water used in said factory.” The principal part of the plaintiff’s claim was for water rent paid by him during the five years of the tenant’s occupancy of the premises which the latter had failed to pay. As part of the plaintiff’s case city water bills paid by him were offered in evidence. Objection was made to this evidence and the objection overruled. The first assignment of error takes exception to this action of the court. There can be no doubt of the liability of the lessee for the water rate of the factory. He did not pay it and the plaintiff testified that the amount covered by the bills was paid by him. The bills were properly admitted, therefore, in connection with the plaintiff’s testimony to prove the amount paid. The bills were charged to the property No. 2015, but there was parol evidence that the water supply to that number was for the factory and a question for the jury necessarily arose on that subject. Tbe plaintiff’s testimony was uncontradicted to tbe effect that tbe water covered by tbe bills was used in tbe factory wbicb occupied tbe rear of that lot. There was no building on tbe front of it. Tbe bouse occupied by tbe plaintiff was on No. 2017. Tbe case was clearly one of fact and it would bave been an error on tbe part of tbe court to bave given binding instructions for tbe defendant. Tbe claim for interest on tbe note was evidently disallowed by tbe jury for tbe verdict was for tbe exact amount of tbe water charge. No prejudice resulted to tbe appellant therefore, on account of tbe claim for interest. Tbe refusal to grant a new trial is not a subject of error. Tbe only other assignments relate to tbe admission of tbe water bills and tbe refusal of tbe court to give binding instructions. In respect to both of these subjects of complaint tbe action of tbe court was proper.

Tbe judgment is affirmed.  