F. A. North & Co. v. Williams , 120 Pa. 109 ( 1888 )

Opinion,

Mr. Justice Gbeen:

There is no evidence in this case upon which it would be possible to reform the contract between the parties. It is in writing and was duly executed in the presence of an attesting witness. It speaks for itself, and cannot be overthrown upon the mere opposing testimony of one party, contradicted by the oath of the other, who in this case was a disinterested person. The learned court below thought that this rule did not apply, because the plaintiff could not read or write, and that there was conflicting testimony as to whether the contract was explained to the plaintiff at the time of execution. The plaintiff did not testify that he could not read or write, but he did say that he did not tell Miller, defendant’s agent, that he could not read or write. This, however, is immaterial, because Miller testified positively that he did explain the agreement to the plaintiff and the latter did not deny it, nor did he say that he did not understand it. He certainly did understand that it was for the acquisition of a piano at a price fixed, payable in monthly instalments of five dollars each. The only thing he speaks of as being different from the written instrument is that the agent said he was to have three years to pay for the piano. But he does not say that even as to this there was any positive agreement to that effect, or that on the faith of the assertion he executed the contract. It was error therefore to submit to the jury the question as to what the contract was, and this sustains the third assignment.

Some stress is laid in the argument upon the point that the man who took away the piano did not show his authority to do so. But the plaintiff himself testified that “he said he had all the authority he wanted,” and the defendant testified that he instructed his agent “ to get possession of the piano, because Williams was in arrear in the payment of instalments.” It was not necessary that the agent should have or should exhibit any authority in writing.

The only remaining matter to be considered is the manner in which, possession of the piano was taken. The court below held that it was obtained illegally, because the defendant’s agent told the plaintiff he wanted to tune the piano when in truth he wanted to remove it. The idea, as expressed in the charge, is that because entrance was obtained by means of a falsehood the defendant’s agent was a trespasser, and the defendant was liable not merely for the technical trespass of entering the plaintiff’s house without his permission, but also for taking away the piano and even for punitive damages. A careful examination of the testimony convinces us that this was an erroneous view to take of the ease. The contract expressly provided that in default of payment of any instalment the lessee should re-deliver the piano to the plaintiff or his authorized agent within five days after the default, “ or permit their agent to enter into and upon any premises where said piano may be, and without let or hindrance take away the same.” Under this stipulation it is plain that the plaintiff was under an obligation after five days’ default in delivery to permit the plaintiff or his agent to enter the premises and remove the piano. If this was the plaintiff’s duty, it is difficult to see how he can acquire a cause of action as for a trespass, even if entrance was obtained by means of a false statement. He was bound to grant the entrance merely because he was in default, and whether the true or a false reason was given when entrance was asked, if he conceded it, the entry could not be a trespass. The subsequent taking of the piano could not be a trespass, because that was a contract-right expressly given, and if consent was given to the mere entrance upon the premises, the fact that a false reason for desiring it was given would not convert it from a consentible into a non-consentible entrance. If a citizen desired to see another upon business which he knew to be unpleasant to the latter and chose to assign some other than the real reason for asking admission, he certainly would not become a trespasser merely because he failed to give the true reason.

In the present case, however, there is not under the testimony any sufficient reason for saying that entrance was obtained by a falsehood. The plaintiff himself testified: “A man came to my house and rang the door-bell. I was in the kitchen, and when I got to the vestibule door the man was in the entry.” It would seem, therefore, that the man was already in the house when the plaintiff first saw him. The witness proceeds: “ I asked him what he wanted. He said he had come to tune the piano. I told him to wait and I would call my wife.” It is manifest that the falsehood was not made use of until after entrance had been obtained, and it cannot, therefore, qualify the fact of entrance. While entrance before the bell was answered might in strictest sense be regarded as a technical trespass, it would certainly by itself be damnum absque injuria in any case ;„but here it was effected in the exercise of a lawful right to have entrance in this particular house for the performance of a contract-right, and in such circumstances could not be viewed as an illegal act.

The subsequent subterfuge was of no consequence in any way. No violence or unnecessary force was used, and all that was done was precisely what the defendant had a legal right to do, to wit, “ without let or hindrance take away the same.” As to a demand being made, the very act of taking the piano was a demand for it. Repeated demands had previously been made for the money which was overdue and unpaid, but without success, and the only remaining demand to be made was for the instrument itself. Both the plaintiff anil his wife said at the time the piano was taken that they were willing to pay and would pay the balance due, but in point of fact they neither did pay nor tender payment of any actual money or its equivalent. The defendant and Ms salesman both testified that they subsequently offered to return the piano if the balance due was paid, and this is not contradicted, but no more money was ever paid or tendered. All the assignments of error except the second are sustained.

Judgment reversed, and new venire awarded.