58 Pa. Super. 439 | Pa. Super. Ct. | 1914
Opinion by
■ ■ This is an action, of trespass brought by Mrs. H. Abel against M. H. Pickering Company for damages alleged
The lower court took the position that the bailor had no right to take the goods without previous demand and reasonable notice; that there having been no demand upon Abel between August, 1911, and February, 1912, and the payment prior thereto having been made irregularly, the bailor had waived its right of insisting upon strict performance and was required to give reasonable notice before proceeding, citing in his opinion refusing a new trial Goff-Kirby Coal Company v. Marine Coal Company, 31 Pa. Superior Ct. 60. This we think was error. It is true that when parties by a course of dealings show that they have no intention of holding each other to a strict compliance of the contract, either party cannot take the other unawares by insisting upon an exact and literal carrying out of the provisions of the contract and upon failure so to do on the part -of. the other party declare a forfeiture or
The assertion of the right to take the bailed goods Was not to invoke a forfeiture but was the enforcement of a contractual obligation expressed in words and implied in law: Jones v. Wands et al., 1 Pa. Superior Ct. 269; Cobb & Chase v. Deiches, 7 Pa. Superior Ct. 252.
The acceptance of the installments after they were past due was not a waiver of the conditions of the lease. A landlord accepting overdue rent does not waive a clause providing that all rent reserved shall become immediately, due and payable upon default for five days on the part of the tenant to pay any monthly installment: Teufel v. Rowan, 179 Pa. 408. As was said in the above case, "the acceptance of a portion of the amount due and failure to exact all that was due at that time, cannot be a waiver of the contract, but at most is only evidence of a willingness to indulge the debtor. It has never been held that mere delay of suit, or neglect to rigorously exact his money on the day it is due, is evidence of a waiver of his contract right: Atkinson v. Walton, 162 Pa. 222.
If the bailee has failed to comply with the terms of the lease under which he holds the property, the bailor has the right to retake the property under the very terms of the bailment: Barnett v. Fein, 41 Pa. Superior Ct. 423. That the goods were in the possession of a third party .does not alter matters. Her.rights can rise no
Concluding that the bailor had the right to recover possession, the next question involved is as to how far he is permitted to go in order to retake his goods. If his retaking of the goods is opposed, can he use force sufficient to overcome the resistance? The contract provides that the bailors may use such force as they may deem necessary, they to be the sole judges of the force necessary. This provision of the contract does not help us in the decision of the question. It is entirely too broad in its terms to be sustained in its full application. The answer must be found in a consideration of the decisions which declare how much force, if any, a person may lawfully use in retaking personal property, the title to which is in him. Blackstone, in Kis Commentaries, Book III, sec. 4, declares that "when any one hath deprived another of his property in goods or chattels personal, the owner may lawfully claim and retake them wherever he happens to find them so it be not in a riotous manner or attended with breach of the peace. If therefore he can so contrive it as to gain possession of. his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property, and as if individuals were once
The cases in the several states are not in harmony, some courts holding that the owner of property is only liable for excessive force in retaking his property; that he may use such force as is reasonably necessary to overcome the resistance wrongfully interposed. Others hold that where opposition is offered to the retaking of the property, the owner must resort to the remedies offered by proceedings at law. The matter has not been decided by any appellate court in this state.
In North v. Williams, 120 Pa. 109, a case arising under a lease of a piano payable in monthly installments, the Supreme Court by Green, J., held that an entry into the dwelling by artifice and the removal of the piano did not constitute trespass. In deciding this case in favor of the defendant, the court uses the expression “no violence or unnecessary force was used and all that was done was what the defendant had a legal right to do without let or hindrance, take away the piano.” This would seem to recognize the use of necessary force. The above statement, however, was not necessary to a decision of the case, as the facts disclose that no force at all was used, page 113.
We think that the correct view is that where possession of property has been lawfully acquired as by a
As this case goes back for retrial we wish to state that we cannot agree with the statement contained in the opinion of the court refusing a new trial as to all the items of damages. Among them is included “the value of the property seized, for the property in her possession was a thing of value that cannot be taken from her, except by due process of law.” The title to the property was in the bailor under the very terms of the contract. The right of possession was in the husband during the continuance of' the contract. He lost it by default. He had no right to dispose of the goods and the wife acquired no independent title by his turning them over to her. Even if the goods were wrongfully retaken he would be the one to recover and in his name suit would have to be brought and his damages would not be the value of the goods but the value of his special interest: Smith v. Case Threshing Machine Co., 50 Pa. Superior Ct. 92. If the bailor recognized her as the bailee in his stead her rights under the lease would be the same as the original bailee.
The title to the goods with the right of possession being in the bailor as was said in Moore v. Shenk, 3 Pa. 13, “the act of recaption was not necessary to re-vest the title in bailors but was a mere remedy like an action to regain possession by virtue of a title complete.
The damages therefore to which the plaintiff in this
The judgment is reversed and a venire facias de novo awarded.