Eastern Outfitting Co., Inc. v. Myers

BEASLY, J., pro tem. This is an action in claim and delivery for certain furniture. The case was tried under an agreed statement of facts and judgment given against the three defendants, Myers, Goldstein, and Gray, for a return of the property or for the alternative sum of $750 in case delivery could not be made. Gray and Goldstein were sued by fictitious names under apt allegations in the complaint. The court made an order requiring an amendment of the complaint substituting other names for the fictitious names. The complaint seems not to have been formally amended, but Gray and Goldstein both answered and in their answers each recited that he was sued by a fictitious name. Counsel for Goldstein, who alone appeals, now claims that the judgment is invalid as to him because of the failure to file the formal amendment substituting his name for that of Doe. Manifestly, by answering in his proper name, he has waived the amendment, and besides, the agreed statement of facts which, under our practice constitutes the findings, showed that Goldstein was the owner of the Altoona Hotel property, including the furniture, and that Myers was the lessee in possession of the hotel. Myers, while the tenant of Goldstein, bought the furniture from the plaintiff for the purpose of replacing and renewing articles of furniture in the hotel. Myers’ lease bound him to keep the furniture in good and sound condition, and, according to the findings, it was further covenanted and agreed in the lease that all alterations, additions, and improvements which might be added to or placed in the leased premises should be the property of Goldstein and should be surrendered to him with the premises. Myers’ lease was terminated on the first day of March, 1917, and the property was thereupon let by Goldstein to Gray, who, on March 1,1917, took possession of the hotel and of the property sought to be recovered by this action. Gray had no notice or knowledge that plaintiff claimed the property, and took the property in good faith and for a valuable considera *318 tion, and is now in possession of the property as the tenant of Goldstein. Before this action was begun the plaintiff demanded the property from the defendants and delivery was refused. The character of the transaction between Myers and the plaintiff at the time Myers acquired the property is the vital question in this ease. A part of the agreed statement of facts consists of certain memoranda, or printed or written documents signed by Myers and apparently executed by him to the plaintiff at the time of the acquisition of the furniture. These are in the form of printed receipts, many blanks upon which are not filled. They recite, among other things, that “the undersigned lessee acknowledges to have received on lease from the Eastern Outfitting Company, denominated the lessor, the furniture described in the complaint. There are several of these interesting memoranda, and in two instances, they are varied by language other than that above quoted, which characterizes the transaction. For instance, in one dated July 8, 1916, it was recited that Myers “has this day leased of Eastern Outfitting Company the following goods ’ ’: and that “all payments therefor are to be made at said Eastern Outfitting Company’s office,” and the document further reads: “Should I fail to make any of the payments as specified, I hereby agree to surrender and return said goods to the Eastern Outfitting Company in as good condition as when received, customary wear by careful usage excepted. And I further agree . . . that no agreement of sale of said goods is implied, nor shall a sale of same be deemed valid without a written receipt from said Eastern Outfitting Company therefor.” There are also agreements to keep the goods insured against fire and to pay such insurance, in case of loss, to the Eastern Outfitting Company, who is again denominated the lessor, and to pay one hundred dollars down, and fifty dollars per month rental thereafter “until total is paid.” Reading these papers all together, they must be held to either constitute a conditional sale of the goods to the defendant, Myers, or a lease thereof to him; and it seems to us that it is not necessary to decide whether the goods were taken under a lease or were purchased conditionally. For in either instance the title remained in the plaintiff and upon default by Myers the plaintiff became entitled, upon demand, *319 to a return of the property, whosoever might have possession of it. Goldstein, who alone appeals, contends that he was not in possession of the property. But his tenant, Gray, was in possession and it seems to us that possession by- his tenant was sufficient to sustain the judgment against him, where he is resisting the delivery of the property. Judgment is affirmed. Lennon, P. J., concurred.