Shoop v. Fee , 1914 Pa. Super. LEXIS 240 ( 1914 )

Opinion by

Rice, P. J.,

The rent under the lease from Mrs. D. J. Sterling to Paul Shoop was payable monthly in advance, and was paid up to January 1, 1912. Therefore, the landlord’s warrant was prematurely issued on December 18, 1911, unless it was justified under the clause of the lease which provided, that, if the tenant “shall remove or attempt to remove or declare an intention to remove the goods from said premises, then and in such case, the entire rent for the balance of said term shall at the option of the lessor, at once become due and payable, as if by the terms of the lease it were all payable in advance. . . .” This language plainly means the tenant’s removal, attempt to remove, or declaration of an intention to remove. See Walsh v. Phila. Bourse, 32 Pa. Super. Ct. 348; Harrop v. Lutz, 53 Pa. Super. Ct. 195, 201. While, under the common-law rule, the goods of a third person found on the leased premises at the time of distress lawfully laid for rent in arrear may be seized, yet there is no reason in justice for extending the right of dis-training beyond what the ancient law has established, as was said in Capel v. Buszard, 6 Bingh. 150. To extend this right to take the goods of a third person, by straining the covenant under consideration beyond the plain intent of the words, so as to make the mere attempt of the third person to remove his own goods happening to be on the premises, or his declaration of intention so to do, as effectual to advance the time of payment of rent, as would be a similar attempt or declaration of intention by the lessee as to goods he owned or controlled, would be unwarranted. There was evidence that would sustain findings that at the time of the distress the lessee had left home and his whereabouts were unknown; that his wife, who was left in charge of the premises, and his mother (the plaintiff), who was living with her as a boarder, were about to remove all the household goods, the principal part of which belonged to the mother, from the premises; and that in this attempt they were acting in conjunction. We are of opinion that such findings would bring the case within the true meaning and intent of the covenant, and we are inclined to the opinion that the weight of the evidence was in favor of such finding. But, on the other hand, there was evidence, amounting to more than a scintilla, that the intention to remove, or attempt to remove, was not that of the wife, but only that of the mother, and included only the latter’s own goods. The evidence being oral and to some extent in conflict, the questions above suggested were for the determination of the jury. Therefore, the refusal of the plaintiff’s point for binding direction, and her subsequent motion for judgment non obstante veredicto, were properly overruled. But in so far as the instructions under which the questions were submitted conveyed the idea, as some of them seem to have done (see particularly first and sixth assignments of error), that the principal question in the case for the jury to determine was, whether there was an attempt oían intention by the plaintiff to remove the goods from the premises, and that, if she made any attempt to remove her goods before the distress, the whole rent for the balance of the term became due and payable, we think there was error. We need not discuss the several assignments of error in detail. The foregoing sufficiently suggests our view regarding them.

The question raised by the fifth and seventh assignments of error is as to whether, in the event of a finding in favor of the defendants, an attorney’s commission of 120.00 should be included. The lease contained a provision that, in case of default in payment of rent or any other breach of covenant, a judgment might be entered against the tenant and in favor of the lessor for the sum due by reason of the default or breach of covenant, "with costs of suit and attorney’s commission of $20.00 for collection.” No other express provision with regard to the attorney’s commission has been called to our attention, and no case has been cited which extends such provision in the lease to proceedings by distress. We are not convinced that there is any principle which justifies its extension to that kind of proceeding. The words "expenses, etc.,” in the immediately preceding clause of the lease may be well satisfied without construing them as arbitrarily entitling the landlord to an attorney’s commission of $20.00.

The judgment is reversed and a venire facias de novo is awarded.