Tinware Manufacturing Co. v. Duff

Opinion by

William W. Portee., J.,

The common-law rule that all goods upon demised premises are liable to distraint for rent, still obtains in Pennsylvania although, as prophesied by Chief Justice Gibson, in Brown v. Sims, 17 S. & R. 138, it has in some measure been “eaten out” by exceptions. Thus, it has been held that goods placed by a stranger with the tenant on storage and goods consigned to the tenant as agent for tbeir sale, are not liable to sale under distress for rent: Brown v. Sims, supra; Karns v. McKinney, 74 Pa. 387; Howe Sewing Machine Co. v. Sloan, 87 Pa. 438; Page v. Middleton, 118 Pa. 546. These exemptions are not absolute, however, since where the landlord has pursued the provisions of the act of 1772 with precision, and such goods have in fact been sold in ignorance of their character and ownership, the landlord may not be held liable for a trespass: Caldcleugh v. Hollingsworth, 8 W. & S. 302; Esterly Machine Co. v. Spencer, 147 Pa. 466. To hold otherwise would be to put upon the landlord the burden of sustaining the tenant’s title to each chattel sold, in case, subsequent to sale, title should be asserted by a third party in an action of trespass. It was the purpose of the act of 1772 to relieve from such a burden. If, however, before distress laid upon such goods, the landlord has knowledge or notice of their character or ownership and proceeds with his distress and sale, without allowing opportunity to the owner to assert title by replevin, the landlord is liable for damages in an action of trespass brought by the owner of such goods: Brown v. Stackhouse, 155 Pa. 582.

What knowledge had the landlord of the character and ownership of the goods sold in this case ? It was proven on the trial that the plaintiffs were the owners of the goods distrained upon and sold; that the goods were consigned to the tenant for sale on commission, and were in storage upon the demised premises. It was further proven that the landlord knew the business of the tenant; and that, while the latter dealt on his own account, he also held consigned goods on sale on commission and in storage. Thus was the landlord put, to some extent, on his guard when making the distraint. See Howe Sewing Machine Co. v. Sloan, supra. He justifies the levy upon the particular goods sold, on the ground that the tenant indicated them as his own property. There is some testimony that notice was given to the constable that the goods were not the property of the tenant, and that an employee of the tenant told the landlord that none of tbe goods upon the premises belonged to the tenant. There was thus a conflict as to the knowledge had by the landlord at the time of making the distraint. Aside from this, however, before the sale, the landlord received a formal written notice signed by the tenant, that the goods distrained upon and about to be sold were the goods of the “ Toledo Tinware Manufacturing Company, on consignment.” No opportunity was thereafter given, by the landlord to the owners thus named, to replevy the goods.

The court below charged, as complained in the fifth assignment : “ For the purposes of' this ease, I instruct you, that having received that notice, it was the duty of the landlord to give the owners of the property time to replevin the goods, if they had not already received notice of the fact that a distress had been made.” There is no error committed in this instruction. In view of the knowledge of the character of the tenant’s business had by the landlord, and particularly in view of the notice given, it was the duty of the landlord to afford reasonable opportunity to the owners of the goods to replevy. See Esterly Machine Co. v. Spencer, supra. No error injurious to the defendant was committed in submitting to the jury the question of actual notice of the distraint and sale.

It is urged that the landlord was obliged only to serve the notice, required by the .act of 1772, upon the tenant; that he so served it; that the tenant was the agent of the owner of the goods, and that thus the plaintiffs had opportunity to replevy their goods. It is said somewhat broadly in Caldcleugh v. Hollingsworth, supra, that the tenant is the agent of the owner, and that it is his duty to forward the notice of levy to his principal, but the point of that case was that “ no notice was given to the landlord before selling, that the machine distrained was the property of another:” Brown v. Stackhouse, supra. No case has been called to our attention in which notice to the tenant was held to be a protection to a landlord, who sold after notice that the goods were held by the tenant on consignment; and in Briggs v. Large, 30 Pa. 287, it was expressly held that the tenant was not an agent of the real owner of such goods to the extent of waiving any of the essentials in the process required by the act of 1772. It is not necessary to pass separately upon the several assignments.

Finding no reversible error committed on the trial, the judgment is affirmed.