Stern v. Stanton

Opinion by

Mr. Justice McCollum,

The assignments from the first to the eighth inclusive complain of rulings on offers of evidence. The first and second are based on the admission of evidence, and the third, fourth, fifth, sixth, seventh and eighth on the exclusion of it. The evidence objected to and admitted was clearly competent. It related to the dimensions and contents of the leased buildings, and to the offer of the plaintiff to pay a month’s rent. It was unquestionably relevant to the issues of fact raised by the pleadings.

The objections to the evidence offered and excluded were well taken. It was competent for the defendants to show that the plaintiff had a reasonable time in which to remove the goods after the sale and before they were distrained. But the reasonable time allowed for their removal is not the time within which they might possibly be removed by extraordinary effort.

It is not the shortest possible time in which they could be removed, but the time required to move them with diligence in the ordinary and usual manner of moving such goods. Hence, evidence showing what might possibly be accomplished in an emergency calling for extraordinary effort and the employment of unusual methods is not strictly relevant.

The allowance or disallowance of questions addressed to a witness, on a re-examination of him, for the purpose of obtaining a repetition of some part of his former testimony is a matter within the sound discretion of the court, and therefore not subject to review, unless a palpable abuse of the discretion appears. The questions addressed to Watterson on the defendants’ proposed re-examination of him were of this nature, and the disallowance of them by the court affords no reasonable ground for complaint.

It is by no means certain that a letter written and sent by Watterson & Reid to their clients on the day the goods were distrained would be competent or relevant evidence in this issue. It is clear, however, that neither the person who wrote it nor the person who dictated it could testify to its contents without proof of its loss, or at least of an effort and an inability to produce it. It is sufficient to say of the rejection of the offer to prove the contents of the letter that the grounds for the introduction of such evidence if relevant and competent were not laid.

It is obvious that neither Gloninger nor Weber was qualifiecL to define the reasonable time required for tbe removal of the goods in question, and that the clandestine and hurried removal by a tenant of his goods from the Marshall building in the nighttime was a circumstance not material or relevant to the issue to be determined by the jury. An extraordinary case, like a hurried removal of goods from a building on fire, furnishes no measure of the reasonable time required for the removal of the goods in this case.

For the reasons above stated we conclude that there is nothing in the rulings complained of in the assignments referred to which inquires or would justify a reversal of the judgment. The 9th and 10th assignments complain of instructions to the effect that the plaintiff was entitled to a reasonable time in which to remove the goods, and the 11th and 12th assignments complain of the refusal of the court to hold that the alleged inaction of the plaintiff during a part of that time authorized the defendants to distrain the goods before tbe expiration of it. The court, however, in the general charge and the answer to the plaintiff’s second point, virtually instructed the jury that if they found from the evidence that the plaintiff, on the day before the goods were distrained, informed the defendants or their agents that he did not intend to remove the goods, and that it was his purpose to keep them where they were until he could sell them, he could not recover. It seems to us that this instruction was as favorable to the defendants as they could reasonably expect. The goods were turned over by the sheriff to the plaintiff Saturday evening, January 4, and they were dis-trained by the defendants Thursday morning, January 9. As the reasonable time allowed for their removal did not include the nighttime or Sunday it must be held to date from the 6th of January. The plaintiff testified that on the 6th they were busy in picking out and delivering the goods bought by other parties, and that he spent all of the next day in looking for a place to put the goods purchased by him. On the 8th of January there was an interview between the parties in which the defendants were represented by Watterson, Black and Gloninger, and the creditors for whom the goods were purchased were represented by the plaintiff, Cohen and Israel. The plaintiff testified distinctly and positively that at this interview it was agreed that he should occupy the premises, prior to April 1, for such time as he might need them for the disposal of the goods, and that for the time he actually occupied them for that purpose he should be chargeable with and pay rent at the rate of $2,000 per month. The testimony of Cohen and Israel was equally distinct and positive in support of the agreement as stated by him, while their testimony and his was flatly contradicted by the testimony of Watterson, Black and Gloninger. Of course if the jury found the agreement as claimed by the plaintiff that of itself entitled him to recover. On the question whether he had a reasonable time in which to remove the goods before they were distrained there was not much conflict in the evidence. The plaintiff testified that he had an experience of fourteen years in removing goods, and that it would take from two to three weeks to remove the goods in question if proper care was exercised to prevent damage to them. Rothschild, who superintended the removal of the goods to Kaufman’s testified that it took from ten to twelve days to remove them with from five to ten wagons and from twenty to thirty men, and that a larger force could not “ have been practically put upon the work.” Purvis, who was employed at Kaufman’s was charged with the duty of receiving and caring for the goods as they were brought there, and he testified substantially as Rothschild did as to the time taken and the force employed in removing them. Hoeveler, a witness called by the defendants, had a storage house and vans and wagons for moving goods. He had been in the business seven years, and he testified that it would take five days to move the goods to his warehouse and put them into store so they could be removed again, and that in removing them he “ would use four vans, four wagons and the necessary horses, men and clerks.” His estimate of the time within which he could remove them did not include the time required to suitably pack and arrange them for removal. The foregoing summary of the evidence relating to the defendants’ claim that the plaintiff informed them on the 8th of January that he did not intend to remove the goods; to the claim of the plaintiff of an agreement under which he was to occupy the premises until he disposed of them; and to the reasonable time required for the removal of them, sufficiently discloses the issues of fact between the parties.

It is settled by the verdict that the defendants’ claim that the plaintiff informed them that he did not intend to remove the goods was unfounded; and it is shown by the uncontradicted testimony in the case that the plaintiff did not have a reasonable time in which to remove the goods before they were distrained. It is practically conceded by the defendants that the plaintiff did not have sufficient time in which to pack and remove the goods before the 9th of January, but they contend that as he did not pack and remove any of them before that time he lost or forfeited his right to the reasonable time the law allowed for their removal. Is their contention sound? We are clearly of the opinion that it is not. If it is, it logically follows that the defendants could have distrained the goods on tbe 7th of January, although the reasonable time required for their removal was ten days. They claim that there is authority for this contention in Gilbert v. Moody, 17 Wendell, 354. In that case the goods sold and subsequently distrained were in a dwelling house, and consisted of household furniture which could readily have been removed, and no reason or excuse for delay was offered on the part of the plaintiff. The sale was made by the sheriff in the afternoon of Saturday, the 14th of July, and the goods remained on the leased premises until Tuesday morning, the 17th of July, when they were taken by the defendants under a distress warrant for rent. “ The goods might have been conveniently removed on Saturday afternoon, at a trifling expense.” Nelson, C. J., in delivering the opinion of the Court, said : “ Goods levied upon by execution are considered in custodia legis until the proper time for the sale and a reasonable time after the sale for the purchaser to remove them: 2 Brod. & Bing, 362; 1 Maulé & Sel. 711; Brad by on Dist. 84. What is a reasonable time is a question of law when there is no dispute about the facts. It is apparent from the evidence that the removal of the goods could have been effected in a few hours; the whole of Monday was clearly a sufficient time for that purpose.” It will be noted that in the case cited the goods were distrained after the reasonable time for their removal had expired, and no reason or excuse was assigned for the delay. It bears no resemblance in its facts to this case, and it furnishes no support for the contention based on the defendants’ second and fifth points.

Further reference to or discussion of the evidence affecting the material issues in the case is unnecessary. The excerpt from the charge on which the 9th assignment is based does not require special consideration. Whether the excerpt is considered by itself or in eounection with the rest of the charge is unimportant, because there is no material error in it. It needs no citation of cases to prove that it is not error to express an opinion upon the weight of the evidence if the facts be left to the jury.

All the assignments are overruled.

Judgment affirmed.

Case Details

Case Name: Stern v. Stanton

Court Name: Supreme Court of Pennsylvania

Date Published: Feb 7, 1898

Citation: 184 Pa. 468

Docket Number: Appeal, No. 96

Court Abbreviation: Pa.