Page v. Middleton

118 Pa. 546 | Pa. | 1888

Opinion,

Mr. Justice Clabk:

The general rule of the common law, as well as the proper construction of our statute of March 21, 1772, is, that whatever goods may be found upon demised premises may be distrained for the rent, whether they belong to the tenant, or under tenant, or to a stranger. This rule, however, is subject to a variety of exceptions, and it is contended that the goods replevied are embraced within these exceptions, and were privileged from distress.

Harlan Page, the plaintiff below, is a merchant in machinery and machinery supplies in the city of Philadelphia. Thomas S. Quay is a wood-planer, and was in business on Girard avenue, in the same city. On July 23, 1884, Page consigned to Quay a certain corundum wheel and knife grinder, which Quay accepted, and signed a receipt in the following form:—

July 23,1884.

Thos. S. Quay, 701-703 E. Girard Ave.

-Received from Hablan Page

Corundum and Emery Wheels and Machinery, best Turkish and American Emery and supplies generally.

No. 123 North Third St., Philadelphia.

1 Corundum Wheel 12x-|x 1 4 ) 1 30 in. Knife Grinder & Co. Shaft, j

Consigned as per regular terms.

T. S. Quay.

The bill-head upon which the receipt was written, stated terms as follows:

Teems : As proof that my wheel is all that I represent it to be, I allow the purchaser to be the judge.

The wheels are placed on trial for 30 days from date of shipment ; if, at the expiration of that time, they prove satisfactory, I want the cash; if not satisfactory, I want the wheels.

I warrant the Keystone Emery to be perfectly satisfactory to the purchaser, or it may be returned at my expense. Thirty days’ trial given on emery wheel machinery.

Harlan Page, 123 North Third St., Phila.

Page testified, however, that “ consigned as per regular terms ” meant terms as stated on the first page of his catalogue, as follows: “We will consign machinery and wheels to any responsible parties, for a period of thirty days from date of shipment, during which time, a thorough trial and decision can be made regarding their true worth. At the expiration of said thirty days, a report will be required in every instance: if the goods do not prove as represented they are to be returned to us, but if satisfactory, a sale may then be effected upon terms aforesaid.”

Afterwards, without notice to Page and without using the machine, Quay sold out his business to Bonta & Fredericks, and stored the machine with a man by the name of Officer, who occupied the third story of said premises; Bonta & Fredericks became in arrears for rent, and the machine was, inter alia, distrained by Middleton, the landlord, for the rent. Page made a claim to the constable for the machine, which was disallowed, and then issued the writ of replevin in this suit.

It is contended, that under the terms of the consignment, the knife grinder remained the property of the plaintiff, and that the rule of the common law must give way in this instance, for the reason, that the property was delivered to Quay in the necessary way of trade or business, or, at all events, that it was deposited by Quay with Officer on storage merely. We are relieved however from deciding whether the title of the property was in Page or Quay, as, in either event, we think it was liable to distress for the rent.

The true rule in such cases is thus stated in Karns v. McKinney, 74 Pa. 390: “ Where the tenant in the course of his business, is necessarily put in possession of the property of those with whom he deals, or those who employ him, such property although on the demised premises, is not liable to distress for rent, due thereon from the tenant. This general rule of privilege arises out of the necessities of trade, and hence it is, that a traveler’s baggage at an inn, goods landed at a wharf or deposited in a warehouse on storage, a horse standing in a smith’s shop to be shod, or corn at the mill to be ground etc., etc., have been held to be free from distress for the rent of the premises upon which they are found.” On the same grounds it was held in Howe Sewing Machine Co. v. Sloan, 87 Pa. 438, that goods entrusted to an agent to be sold on commission, are not liable to distress for rent due by the agent.

But in no sense can it be said that either Quay or Officer was, in the course of his business, necessarily put in possession of this property; the delivery of the property was not a necessity in the trade or business in which either of them was engaged. Officer was not a warehouseman at all; he was not to any extent engaged in the business of keeping goods on storage ; he permitted this knife grinding machine to be placed on his premises purely as matter of favor, and without hope of reward. In such a case, the principle of exemption invoked can have no possible application.

We are of opinion, therefore, that the property replevied was not privileged from distress for rent, and

The judgment is affirmed.