M. H. Pickering Co. v. Lichtenstein , 1916 Pa. Super. LEXIS 247 ( 1916 )

Opinion by

Trexler, J.,

M. H. Pickering & Company, the appellant, replevied certain goods which they had leased to Taggart. The landlord of the latter had, prior to levy by the sheriff, made a distraint for rent in arrear.

The only questions presented are, first, was the warrant of distress in proper form and second, was it proper for the person executing the warrant to levy on Pickering’s goods?

First: The lease was made by the Aronson Realty Co., Inc., Agent for H. & J. Lichtenstein. The landlord’s warrant was not produced at the trial of .the case but there was testimony that it was signed by the Aronson Realty Co., but whether as principal or agent, does not clearly appear. The court held, “that it was immaterial whether the Aronson Realty Co. issued the landlord’s warrant in its own name or as agent for the Lichtensteins.” The case here differs from those in which a party issuing a landlord’s warrant was not concerned in the leasing of the property. Here the very person'who made the lease and collected the rents issued the warrant. It was held in Bedford v. Kelly, 61 Pa. 491, that a warrant issued by one who executed a lease as agent could be issued without disclosing the principal, so also is Seyfert v. Bean, 83 Pa. 450. Taggart certainly knew that the warrant was issued for rent due to the Aronson Company as agents for the landlord. He raises no objection. The actual facts are not in dispute. The authority of the Aronson Company to issue the warrant is not questioned. Had the Aronson Company without any writing directed the bailiff to distrain, "distress would nevertheless have been lawful for there are a number of cases in Pennsylvania that hold that a bailiff may dis-train under a mere parol authority: M’Geary v. Raymond, 17 Pa. Superior Ct. 308. The real question involved in the case was whether there was rent in arrear for which this warrant could issue.

Second: Was the levy upon Pickering’s goods properly made? The landlord’s warrant as stated before was not offered in evidence. It had been mislaid or lost but there was produced at the trial, although not offered in evidence, the printed form which was supposed to be like the one that had been used by the bailiff and in the form is a direction to levy upon the goods of the tenant which are found upon the premises and no reference is made to the goods of others. It is therefore claimed that there being no direction to levy upon Pickering’s goods they could not be distrained. Conceding that the warrant was in the form which the plaintiff claimed, though the bailiff testified that the warrants he used directed him to levy upon the goods, notwithstanding who owned them, we do not think it affects the decision of the case. The point is extremely technical. The goods of the Pickering Company on the premises did not belong to the tenant but the law regards them as liable to distress for rent and they therefore occupy the same position as the tenant’s goods and are liable for distress when a distraint is made. It is not required of the landlord when he issues a warrant to include in his direction to the bailiff the fact that the law gives him the right to levy-, upon the goods found upon the premises with certain exceptions. Barring the goods excepted by statute, all the goods upon the premises are for the purpose of distraint to be considered as the tenant’s goods although, that may belong to others.

The assignments of error are overruled and the judgment is affirmed.