Brumbaugh v. Feldman

47 Pa. Super. 10 | Pa. Super. Ct. | 1911

Opinion by

Henderson, J.,

This is an action of replevin by which the plaintiff asserted his title to the personal property described in the writ which had been theretofore distrained for rent by Bertha Feldman, the lessor. The house in which the goods were was leased by Mrs. Feldman to one John A. Hedberg by lease dated March 6, 1908, wherein a term was granted to the lessee for one year, beginning April 1, 1908. The rent for the term was $180, payable in equal monthly payments in advance. The lease contained the following provision: “Any removal or attempted removal from said premises by the lessee while any portion of the rent for the full term shall be unpaid shall be deemed a fraudulent and clandestine removal, and the whole rent for the entire term shall fall due and be collectible at once.” A part of the furniture which Hedberg placed in the house when he went into possession was obtained from the plaintiff in September, 1906, by a contract of bailment to mature into a sale on condition that the price be paid in accordance with the terms of a written agreement then entered into between Hedberg and the plaintiff. Mrs. Feldman, alleging that her tenant was attempting to remove from the premises, issued a landlord’s warrant on September 28, 1908, and distrained the goods in the house. The property seized on the landlord’s warrant included that which plaintiff had leased to Hedberg and is the property covered by the writ of replevin. The plaintiff resists the lessor’s claim on three grounds, (1) that the goods of a stranger are not liable for rent not due and in arrears; (2) that the defendants failed to offer evidence to show a removal or attempted removal from the premises on or before the time of the distress; (3) that there was no evidence to show that the rent distrained for was due at the time the warrant of distress was issued. The first proposition can readily be assented to and it applies as well to the goods of the tenant as to the goods of a stranger. Where no rent is due there is no right of distress, but the lease in question provides that the whole rent for the entire term shall become due and collectible at once if the tenant remove, or attempt to remove, from the premises while any portion of the rent shall be unpaid, and if the conditions existed which made this provision of the- lease operative, all the rent for the remainder of the term was due at the time the warrant was issued. That such a provision in a lease is enforceable has been often decided. A tenant may agree, when entering into a lease, that the maturity of rent may be accelerated; the parties may agree that the whole rent for the term may be payable in advance or that it shall become payable at once on default, of payment periodically, in accordance with the terms of the contract, or that it may become due if the tenant remove or attempts to remove from the premises before the end of the term, without having paid the rent for the term. On the happening of the contingency provided for, the rent that was theretofore payable by installments becomes immediately due as provided in the lease. Goodwin v. Sharkey, 80 Pa. 149; Seyfert v. Bean, 83 Pa. 450, and Platt, Barber & Co. v. Johnson & Peterson, 168 Pa. 47, are some of the authorities on this subject. Whether the tenant was removing or attempting to remove from the premises was a question of fact which was left to the jury in a clear and fair charge and the evidence justified the submission of the case and the verdict of the jury on that point. For it was shown, and not denied, that Hedberg had gone to Virginia several months before, and the plaintiff himself testified that Mrs. Hedberg, who remained in the house, told him to get the goods, that she was going away and the house was immediately thereafter vacated and remained vacant until the end of the term. The plaintiff, acting on the information obtained from Mrs. Hedberg, proceeded to remove the goods from the house and was -engaged in so doing when the bailiff served the warrant of distress. There is evidence, therefore, not only to show an attempt to remove, but the actual removal of furniture from the house in execution of the plan to leave the premises. At this time Hedberg had paid the plaintiff $173 on the contract for the furniture and a balance of $33:00 remained due, $10.00 of which Mrs. Hedberg paid to the plaintiff some time after the distress was made. It might well have been a matter of consideration for the jury on this state of facts whether the plaintiff was not acting in concert with the tenant in removing the goods. The inference would not be unwarranted that he was acting not only for himself, but for Hedberg in so doing. However that may be, the law is well settled that the goods of a stranger on the demised premises are liable for rent which becomes due under the lease. There are exceptions to this rule, but it is conceded by the appellant that his case is not within the exceptions and this liability to distress exists according to the terms of the lease. He who permits his goods to be and remain in the hands of a tenant on the demised premises does so at the risk that they may be distrained when rent becomes due as stipulated in the lease. It is the lease which fixes the time when rent becomes due and it is the maturity of the rent which creates the liability.

Part of the argument of the learned counsel for the appellant is addressed to the proposition that the court wrongfully assumed that rent was due for the month of September, but after careful examination of the evidence we do not find a sufficient foundation for this objection. The testimony of the plaintiff that "Mrs. Feldman also acknowledged it was one month due,” and of Mr. Hastings that she said rent for one month was due, is not contradictory of, nor inconsistent with the testimony of the defendants that there was seven months due under the lease, including the month of September. Mrs. Feldman’s statement made on October 1 had evident reference to the rent which had accrued and was due when the landlord’s warrant was issued.

We regard the case as well tried and the assignments are therefore overruled.

Judgment affirmed.