38 A.2d 526 | Pa. Super. Ct. | 1944
Argued April 18, 1944. The landlord, appellee here, leased his farm for mining purposes to Elias J. Nassar who brought and used thereon a steam shovel owned by appellant. Appellee issued a landlord's warrant for rent due, and the bailiff seized the steam shovel. Appellant instituted replevin and at the trial, both sides having agreed that there was no question of fact to be submitted to the jury, the trial judge directed that it return a verdict for appellant upon the condition that he pay appellee $290.72, the amount of the rent. Upon appellant's motion for an unconditional verdict, the court en banc, one judge dissenting, sustained the trial judge and this appeal followed.
There is no dispute about the controlling facts. Appellant leased his steam shovel to Nassar. There is no statutory or decisional law exempting steam shovels from distraint, and ordinarily the landlord could distrain and sell it as the personal property of a third *322
person found upon his premises: Reinhart v. Gerhardt,
To support that contention appellant relies upon the testimony of D. Ray Hayden and Adrian Frazee. They had formerly owned the steam shovel, and sold it to appellant. Hayden testified that on the evening of the day when appellant leased the shovel to Nassar, and before the shovel was placed upon appellee's premises, he met appellee on the street, and, in the course of a conversation in which appellee tried to sell Hayden an automobile, Hayden said: "Told him [appellee] the transaction I had with Mr. Frazee in selling the shovel and he in turn hadleased it to Mr. Nassar and that if Mr. Nassar made the payments why I would be interested in buying an automobile." Adrian Frazee, a son of appellant, testified that he heard the conversation between Hayden and appellee and that "Mr. Hayden said that he had sold the shovel to Mr. Nassar, or leased it, him and my father, and that when he paid *323
for it he would trade his automobile in on a better one." (Italics supplied). We note in passing the startling difference between the two versions of the conversation; according to Hayden, he told appellee that he, Hayden, sold the shovel to appellant who leased it to Nassar; according to Adrian Frazee, Hayden told appellee that he, Hayden, had sold or leased the shovel to Nassar. Be that as it may, there is no evidence that Hayden and Adrian Frazee were acting for appellant as his agents or even as his messengers. Certainly, appellee had no knowledge that they were agents for appellant and, in the absence of such knowledge, an express waiver and, a fortiori, a waiver by silence, could not be created: Cf. McKinney v. Snyder,
"Waiver is essentially a matter of intention, and to establish it there must be some declaration or act from which the insured [appellant] might reasonably infer that the insurer [appellee] did not mean to insist upon a right which because of a change ofposition induced thereby it would be inequitable to enforce" (Italics supplied): Freedman v. Providence Washington Ins. Co.,
These authorities expose the fatal weakness in appellant's case. For, even if appellee's silence when informed by strangers or volunteers about the ownership of the shovel in a conversation which dealt primarily with the sale of automobiles were held to be a waiver, it is clear that appellant, since it was not shown that he had knowledge of the conversation, could not have been misled thereby, was not thereby induced to omit the written notice, and did not, in reliance upon any statement or conduct of appellee, permit the shovel to be placed upon appellee's premises.
Appellant also relies upon Roesch v. Mark,
Judgment affirmed. *325
