Opinion bt
W. D. Portee, J.,
The plaintiffs in this action of replevin filed a declaration, verified by oath, setting forth the facts upon which their title to the goods and chattels in question was based, as required by the Act of April 19, 1901, P. L. 88. The declaration averred that the plaintiffs had leased a piano to‘Snyder by an agreement in writing, a copy of which was annexed. This agreement was a lease of the piano for the definite term of seven months from January 28, 1899, and by its terms the lessee agreed to pay for the use of the piano for said term the sum of $250, payable in installments, the last of which be*607came due on August 28, 1899. The agreement contained a covenant on the part of Snyder to surrender the piano to Painter & Ewing at any time the latter might demand the same, “provided the money paid in advance for time not yet. expired, if any, be refunded.” One of the defendants, Anderson, filed an affidavit setting forth that he had purchased the instrument from Snyder, without notice of the terms of the lease, and, further, that the agreement annexed to the declaration had been accompanied by a contemporaneous agreement in writing, which provided that when the payments of rent had been promptly made, and amounted to $250, the instrument should become the property of Snyder. A copy of this contemporaneous written agreement was set forth in a supplemental affidavit of defense, and substantially embodied the provisions stated in the original affidavit of defense. Taken, together these written instruments constitute a lease of the piano for a definite term at a fixed rental, payable in installments upon days certain, but the lease was terminable at any time at the will of the lessors, with an additional provision that if the installments of rent should be promptly paid as they became due until they amounted to $250, the piano should become the property of the lessee. The lease contained an express covenant, upon the part of the lessee, to return the property to the lessors upon demand; even had this covenant not been incorporated, the hiring being for a definite term the lessors could at the expiration of that period avail themselves of the proper legal remedy to obtain possession of the property. There was, therefore, no necessity for the incorporation of a covenant to return the property to the lessors at the end of the term. The contemporaneous written agreement upon which the defendant relied contained this provision : “ All payments made are for rent and use of instrument and do not in any way apply to purchase.” This was a bailment and not a conditional sale ': Enlow v. Klein, 79 Pa. 488; Edwards’s Appeal, 105 Pa. 103; Farquhar v. McAlevy, 142 Pa. 233; Lippincott v. Scott, 198 Pa. 283; Stiles v. Seaton, 200 Pa. 114; Potter v. Stetson & Co., 11 Pa. Superior Ct. 627; Jacob v. Groff, 19 Pa. Superior Ct. 144. The allegation of the additional supplement affidavit of defense, that “ Snyder did give a promissory note, which was accepted by said plaintiffs in full settlement for the purchase of said *608piano,” is insufficient for the reason that it does not state who was the maker of the note, nor the amount nor date thereof.
There was no error in the mere entry of judgment against the defendants for want of a sufficient affidavit of defense. The form and effect of such a judgment is regulated by the 5th section of the Act of April 19, 1901, P. L. 88. The judgment shall operate to forfeit aüy counterbond given by the defendant. If the plaintiff desires to proceed for the value of the goods, instead of by writ of retorno habendo to recover the specific chattels, he must first resort to a writ of inquiry for the assessment of damages. The plaintiffs attempted to assess their damages without pursuing the remedy given by the statute ; this was an irregularity.
The assessment of damages is stricken off, and the record remitted with a procedendo.