
    Lasher, Appellant, v. Fahnestock Printing Company.
    
      Landlord and tenant — Contract—Excessive use of electricity — Failure of plaintiff to prove quantity used — Nonsuit.
    In an action by a landlord, against his tenant to recover for an excessive use of electricity over a supply to the extent of five horse power to which the tenant was entitled under his lease, a nonsuit is properly entered where it appears that it was impossible for the jury to estimate what horse power had been used because the meter from which the readings had been taken was one which did not register horse power, but which registered something else. The burden of proof in such a-case is on the plaintiff to show the extent of the excess.
    Argued Jan. 10, 1908.
    April 27, 1908:
    Appeal, No. 207, Jan. T., 1907, by plaintiff, from order of O. P. No. 3, Pbila. Co., March-T., 1904, No. 1,322, refusing to take off nonsuit in case of George F. Lasher v. Fahnestock Printing Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover for an excessive use of electricity. Before Ferguson, J.
    The opinion of the Supreme Court states the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.
    
      Error assigned was refused to take off nonsuit.
    
      Henry Budd, for appellant.
    
      W. Horace Hepburn, for appellee.
   Per Curiam,

This was assumpsit for excessive use of electricity by the defendant. Plaintiff as landlord covenanted in consideration of the rent to supply electric power to the extent of five horse power, not to be metered, and to furnish additional horse power at the rate of $75.00 per annum per horse power. In explaining to the jury his reason for a non-suit, the learned judge below said the evidence “is too indefinite for you to endeavor to estimate the amount of horse power which the defendants used. As I said before, it is quite possible that the plaintiff did furnish excess horsepower; but the burden is upon him to show how much; and it is not possible for you to estimate what horse power the defendants used because the meter from which the readings for two months were taken was one which did not register.horse power, but which registered something else. Under these circumstances, it would be impossible for you to give a verdict for the plaintiff. I, therefore, direct that a nonsuit be entered.” An examination of the whole evidence fails to show any error in his action.

Judgment affirmed.  