53 Pa. Super. 195 | Pa. Super. Ct. | 1913
Opinion by
This suit arises under a written lease of a sfiore room, made June 8, 1909, for a term of three years, at $2,100 per annum, payable monthly in advance in payments of $175, the first payment to be made at the signing of the lease and each payment thereafter to be made on the tenth of each and every month during the term. The lease was between J. Edward Lutz, trustee, lessor, and Albert S. Golden and Daniel Oettinger, lessees. On May 16, 1910, the tenants being indebted to sundry persons and being unable to pay, made a bill of sale of the stock
No question is raised as to the integrity of the sale and delivery by the tenants of the goods and material in their store to the committee of their creditors, and it is a conceded fact that the lessor continued to receive his rent monthly for at least twelve months after the sale and delivery of the goods and material as aforesaid, and it is also conceded that when the said goods and material were removed from the premises by the appellees on June 7, 1911, no rent was then due and none became due for several days thereafter and the distraint which gave rise to this suit was not made until June 23, 1911, when the goods were entirely away from the leased premises and ' were stored with an auctioneer for sale.
The contention of appellant’s learned counsel is, first, that by the terms of the lease the goods of a stranger could be seized and sold, no matter where found, on or off the premises, for a period of thirty days after their re
In our opinion neither of these positions is sound. Both at common law and under the Act of March 21, 1772, 1 Sm. L. 370, the goods of a stranger are only liable to distraint when found upon the demised premises. This exact point was ruled in our own case of Ball v. Penn, 10 Pa. Superior Ct. 544. In that case we said: “No authority is needed for the general proposition that the exercise of the right of distress for rent in arrear must be had while the goods are on the demised premises, and that all goods upon the premises, whether belonging to the tenant or other persons, with some exceptions designed to aid in the encouragement of trade not necessary to mention here, are subject to such distress. But the right to pursue the goods after their removal from the premises must be found in the terms of the Act of March 21,1772,1 Sm. L. 370. If this act does not give the right it does not exist.” We think this is all that need be said in regard to the common law and statutory right of the lessor to follow the goods of a stranger after they have been removed from the leased premises.
But the learned counsel contends that the very terms of the lease gives the appellant the right to follow the goods of a stranger and distrain the same away from the premises for a period of thirty days. It is conceded on all hands that the lessee may bind himself by a stipulation in the lease that his goods shall be subject to distress after removal, but it is vigorously contended by appellee’s counsel that the lessee cannot so bind a third party, a stranger to the lease. We think this exact point is decided against the appellant in Walsh v. Phila. Bourse, 32 Pa. Superior Ct. 348. Indeed it hardly seems necessary to cite authorities upon the proposition that a tenant
As to the alleged equitable lien upon the goods and material it seems sufficient to say that there is nothing in the lease attempting to create such a lien on any specific property, nor is there anything in the case, either as matter of fact or of law, which establishes any such lien. The lessor acquiesced in the sale and delivery of the lessee’s goods and material for about a year and we can discover nothing in the case tending to support,-an equitable lien. The lease under consideration does not, by its terms, attempt to create a lien upon any specific piece of property but merely provides how a lien may be created by distress proceedings. We cannot agree with the contention that the provisions of the lease as to how and when a distraint may be made can be construed as creating an equitable lien1 in the absence of a distress. There is
We cannot agree with the appellant’s contention that the removal of the goods by the appellees which they had purchased more than a year prior to the distraint, for a valuable consideration, from “the lessees, caused the entire rent for the balance of the term to become due at once, notwithstanding that at the time of such removal, all previous, as well as the current installments of rent, had been paid. We agree with the contention of appellee’s counsel that the material words in the clause upon which the appellant relies, to wit: “if lessee shall, at any time during the continuance of this lease, attempt to remove or manifest an intention to remove the goods and chattels out of or off from said premises,” etc., can refer only to the goods of the lessee. We think by the very terms of said clause it must be assumed that the words relate to the chattels of a party to the contract.
Upon the facts of the present case we do not consider that Teufel v. Rowan, 179 Pa. 408, supports the appellant’s contention that the assignment by the lessees of May 16, 1910, to a committee of their creditors, the appellees, will sustain the lessor in distraining for the rent due for the full term, in June, 1911, on the theory that the assignment made more than a year before had caused all rent for the balance of the term to become due in advance. That case, as we understand it, would only sustain the appellant’s contention if the lessors had again made default in the payment of rent before the appellees removed their goods from the premises. In that case there was a second default and the landlord then levied and asserted his right to collect for the entire balance of the term, but in the present case there was no default at all after the original one had been condoned, prior to the removal of the goods from the premises.
We understand the law to be that provisions declaring
In the present case there were no material facts in dispute, the questions being of law, and upon careful consideration of the arguments we are of the opinion that the learned court below disposed rightly of the case by granting judgment in favor of the plaintiffs for want of a sufficient affidavit of defense. This practice in a replevin case is authorized by the Act of April 19, 1901, P. L. 88; the landlord having distrained the goods of strangers, not upon the premises at the time, the plaintiffs replevied the same and filed a declaration setting forth all the material facts, and the affidavit of defense not disputing the facts, only questions of law were raised for decision, and we think the judgment of the court below is correct.
The assignment of error is dismissed and the judgment is affirmed, at the cost of appellants.