Donnelly v. Frick & Lindsay Co.

Opinion by

Mb. Justice Brown,

The articles removed from the demised premises by the appellant were trade fixtures. The well settled rule, that the ten-, ant must remove them during the term, and that the right to do so ceases with its expiration, was correctly stated by the learned trial judge in his instructions to the jury. The lease to the appellant expired April 1, 1902, and the proper notice to quit had been served by the landlord. The fixtures were not removed until about the middle of April, and, if there were nothing more in the ease, the plaintiff ought to recover.

The presumption of the law, being in favor of trade, is that a tenant does not intend to make his trade fixtures part of the realty for the permanent benefit of his landlord, but will remove them before .the end of his term ; and it is only when he leaves without removing them during the term that an intention of making a gift of them to the landlord is to be imputed to him: Hill v. Sewald, 53 Pa. 271; Watts v. Lehman, 107 Pa. 106. If, during the term, no intention can be imputed to the tenant to make a gift to his landlord of fixtures, which he has attached to the land for the use of his business, and he has a light to remove them during the tenancy, the same rule ought to, and does, apply when, by permission of the landlord, even without a formal renewal or extension of the lease, he continues to remain on the premises for a definite or indefinite term. During such period, in the absence of any agreement to the contrary, his intention as to his fixtures remains unchanged, and his right to remove them is unaffected by his holding over.

In the present case there was testimony from which the jury could have found that the appellant was justified in believing permission had been given by the landlord’s agent to remain upon the premises after April 1, 1902, and that the fixtures had been lawfully removed during the period of extension granted it, even if indefinite in duration. The tenant may have been mistaken as to its right to remain; but, if it was misled into doing so by the conduct or language of the agent of the appellee, the latter cannot now ask that the fixtures be forfeited to him. This is what the jury should have been told, and it is not to be doubted that they were misled when instructed that the holding over, which would justify the removal of the fixtures/ must have been in pursuance of an agreement of fixed and definite terms, “binding upon both of the parties, and settled.” A portion of the charge excepted to is, that there “ must have been a definite and determinate agreement settled between them.” In this there was error, and, that the case may be submitted under proper instructions, the judgment is reversed with a venire de novo.