Harris v. Shaw

Opinion by William W. Porter, J.,

The rule that all goods upon demised premises are liable to distraint for rent still obtains in Pennsylvania, although subject to some exceptions. Where the landlord has followed with precision the provisions of the act of 1772, and in so doing has sold the goods of a stranger,. he may not be held liable for a trespass: Toledo Tinware Mfg. Co. v. Duff, 16 Pa. Superior Ct. 383. But as the proceeding is statutory, the directions of the statute must be strictly followed, not only as to a seizure, but also as to all subsequent steps, otherwise the protection of the statute is lost: Snyder v. Boring, 4 Pa. Superior Ct. 196; Esterly Machine Co. v. Spencer, 147 Pa. 466. Assuming then, that the plaintiff in this case was the owner of the goods sold for rent due by the tenant, this action in trespass would not lie if the landlord had clearly followed the act of 1772. But the landlord accepted from the tenant a waiver of the appraisément required by the act, and in so doing lost the protection of its provisions: Briggs v. Large, 30 Pa. 287; Chestnut Street Nat. Bank v. Crompton Loom Works, 73 Fed. Repr. 614. If in ignorance of a stranger’s claim of title, the landlord accepts a waiver of appraisement from the tenant, the landlord in respect to such stranger is none the less a trespasser. See cases above cited. It is true that it is the duty of the owner of goods levied upon for another’s rent to bring replevin before their sale, if he have knowledge of the distraint and opportunity to take out his writ, and that it is the landlord’s duty to give him such opportunity. But if the owner of such goods fails to replevy them, it does not follow that he loses his right to sue in trespass, if the landlord, by failure to proceed strictly within the act of 1772,’renders himself “ a trespasser ab initio by his departure from the directions of the law: ” Esterly Machine Co. v. Spencer, supra; Snyder v. Boring, supra; Davis v. Davis, 128 Pa. 101.

In this case the goods sold by the landlord consisted of a number of pieces of personal property, being a part of the contents of a drug store. In proving his ownership the plaintiff offered in evidence a written agreement between himself and the tenant which he claims shows that the property ’was in the tenant’s possession under a lease. The defendant claims that the agreement is not one of bailment but a conditional sale. Thus again are we confronted with a much litigated question, which, in nearly every case, involves the interpretation of a different form of writing, thus rendering precedent of diminished value.' The contract in this case is one of bailment. It is by expression and intention a letting for hire on monthly payments for a term absolutely fixed. The right of the lessor is reserved to compel restitution of the property on default of payment of any of the sums payable monthly. A provision is added that the lessee on payment of a specified sum, after the expiration of the lease, may become the owner of the property. This constituted a letting as distinguished from a conditional sale (see Lippincott v. Scott, 198 Pa. 283), the purpose of the parties being honest and there being no evidence of concealment of its true nature, as to creditors ': Keystone Watch Case Co. v. Fourth St. Nat. Bank, 194 Pa. 537. The absence of a clause stipulating for a return of the property to the lessor at the expiration of the lease is not fatal to this construction: Jones v. Wand, 1 Pa. Superior Ct. 269; Edwards’s Appeal, 105 Pa. 108. The agreement also provides that if the lessee is deprived of the use of any of the property by reason of the assertion of a title superior to that of the lessor, the weekly rental shall decrease in proportion to the value of the articles of which the lessee is thus deprived. This clause does not affect the view that the contract is one of bailment, although it may, perhaps, have significance in connection with the proof of the plaintiff’s title in respect to some of the goods leased. There was, however, sufficient evidence of ownership of the property by the plaintiff to carry the case to the jury, under proper instructions respecting the character and credibility of the proofs and testimony in this regard.

The court below has not indicated upon what ground the nonsuit was entered in this case. We are unable to sustain the judgment which we reverse and award a venire facias de novo.