44 Pa. Super. 85 | Pa. Super. Ct. | 1910
Opinion by
Rieker, the appellee, leased to I. B. Minnich a hotel, for the term of eight months, beginning August 1, 1907, and ending April 1, 1908. The liquor license for the hotel was in the name of Minnich, who on February 8, 1908, joined in procuring an order of the court transferring the license to H. E. Romig. Minnich had failed to pay the rent due his landlord under the lease and Rieker, on February 8, 1908, the same day on which Minnich had procured the license to be transferred, placed in the hands of the sheriff a landlord’s warrant, with direction to proceed to collect the rent by distress. The sheriff, on February 10, 1908, under the warrant, distrained the furniture of the hotel found upon the leased premises. The claim of the landlord was made out against Minnich, and the warrant issued against him. The plaintiff, Weidman, replevied a part of the furniture and now asserts that it was not legally liable to distress for rent. The plaintiff in support of his claim to the property in question produced testimony tending to establish the following facts: He had leased the furniture to Minnich under a written agreement which required the latter to pay a certain monthly rental and provided that after a certain amount of rent was paid the bailee might demand a bill of sale for the property. Minnich used the furniture in the hotel business for several months, and on February 7 told the plaintiff that he was going to leave the hotel and would leave the furniture in the rooms in which it had been during the time he used it. Minnich left the hotel on the evening of February 8, the day the license was transferred. Romig, the transferee of the license, went into possession of the hotel on the morning of Monday, February 10, and at an early hour that morning the plaintiff went to the hotel and entered into a new written agreement with Romig, leasing the furniture in question to the latter, at a given rental per month and providing that when a certain amount of rent had been paid Weidman should execute a bill of sale for the property to Romig. There was
There can be no profit in considering whether the agreements entered into by the plaintiff with Minnich and with Romig, respectively, constituted a bailment or a sale of the furniture. If the plaintiff sold the furniture he would not be entitled to recover it in this action of replevin. Let it be assumed that the contracts involved only a bailment of the furniture. Furniture leased by the owner thereof to the keeper of a boarding house or hotel, who uses it for the purposes of his business, is subject to be distrained for rent due the owner of the building, during the term of the tenant and while on the demised premises: Myers v. Esery, 134 Pa. 177; Wetherill v. Gallagher, 217 Pa. 635. The learned counsel for appellant admits -this to be the general rule, but he argues that the furniture in this case was not liable to distress, for the reason that Minnich, the bailee, had agreed that plaintiff might retake the furniture; that Minnich having left the hotel it must be assumed that his term as tenant of the building was at an end; that Romig must be regarded as a new tenant for a new term; that plaintiff had made a new bailment of the furniture to the new tenant, and that, therefore, the furniture was not legally liable to distraint for the rent which was owing by Minnich at the time he left the hotel. If the facts upon which the argument is founded had been established they might have given rise to questions which this case does not present. We can only consider the evidence which was produced in the
The judgment is affirmed.