Spencer v. Darlington

The opinion of the court was delivered, November 16th 1873, by Sharswood, J. — It is not controverted that under the lease from the Schenleys to Garrard & Co., the malt-house erected on the premises was personal property, and a parol contract for the sale of it not within the provision of the Statute of Frauds. It was stipulated that it might be removed at the end of the term, and was made subject to distress and sale by the lessors for rent in arrear. This action was instituted by the plaintiff below to recover damages for the non-performance~of a contract by the defendant to sell and deliver to him the' malt-house. It is true that the declaration as originally filed in both counts set out an agreement for the sale of certain leasehold premises and malt-house, but an additional • count was filed as an amendment, which declared upon a contract for the sale of a malt-house, with the privilege merely of using and occupying the lot of ground upon which it was erected. If there was any contract of sale at all absolute in its terms — a question submitted to the jury and found by them in favor of the plaintiff below — it -was a contract by the defendants to sell what had been distrained upon for rent, and was to be sold by the constable in virtue of his warrant to distrain. [294] This was the testimony of Darlington the plaintiff, and was abundantly confirmed by the witness White, who related an interview between the plaintiff and Watson, one of the defendants, after the sale. In that conversation nothing but tne malt-house was mentioned. The lessors had no authority to distrain upon the term, and they had not done so. Mr. Armstrong, the receiver of Garrard’s estate, says indeed, “ I think I gave Mr. Hatch (who was an agent of the Schenleys) directions to sell it by a landlord’s warrant.” There was no evidence that Hatch acted upon such directions. Without the sanction of the lessors it amounted to nothing. What would have been the effect upon the contract between the parties had the term been sold, it is not necessary to determine. The evidence was direct and abundant that nothing was sold by the constable but the malt-house. So the constable, called by the defendants, expressly testified. “ I sold the malt-house that day. * * * I levied on the malt-house : I did not see the lease. I acted under the direction of Schenley’s agent, Mr. Hatch; they directed me to sell the improvements that were on the ground, and that is what I sold; I did not sell any lease; at least I may have stated that the lease had so long to run, but it was the improvements that were on the ground that I sold.” Mr. Liddell, one of the defendants, examined on their behalf, and Mr. Ray, another of their witnesses, both present at the sale, speak of the sale as of the malt-house, and say nothing of any sale of the lease. Mr. Darlington, the plaintiff, fully confirmed the constable’s statement. “ The constable announced what he had to sell; he said he had a malt-house seized as the property of Garrard to be sold for rent; the terms would be cash, and it would be sold to the highest bidder. He did not say it was real estate, he said he sold that malt-house; that is all I heard him say about it.” Mr. Darlington stated that before the sale he had an understanding with the agent of the lessors that they would continue the lease to him if he bought, and extend it for ten years if he wished. He testified therefore: “ When I was bidding, I knew I was buying a malt-house with the privilege of leasing it there or taking it away. I knew I could have it ten years if I wished it. I knew I was bidding on a malt-house and lease that had three years to run. I bought from Mr. Watson whatever they bought. He only agreed to give me the malt-house. I did not know anything about their lease.” An understanding that the landlord would continue the lease was a very different thing from a sale of the term. If there was any evidence to contradict all this, it was a mere scintilla. Mr. Watson, one of the defendants, said : “He (the constable) put up that house for sale, with a lease to run, he said, about four and one-half years. He said he did not know the exact month or day, but it was about that time; then he said after that that it had four years to run from the next April after it was bought.” Properly [295] considered there was nothing in this inconsistent with what the constable had testified. He admitted that he may have stated that the lease had so long to run. It was information very proper to give to the bidders. If they could arrange with the lessors and lessees, they need not remove the malt-house, but occupy it on the premises. On this state of the testimony there was no sufficient evidence to submit to the jury that anything was actually sold at the sale except what the constable had power to sell for rent. It is plain that the receipt of the constable and the assignment by Armstrong of the lease after the sale were entirely unavailing to change this result. Even if Armstrong had power to sell and assign the term, his assignment could not affect the contract of sale between the plaintiff and defendants, which we have seen related only to the malt-house. The same remark is applicable to the constable’s receipt. It was not a receipt for the purchase-money, hut for the rent and costs as bailiff of the landlord. It recited that the lease and premises had been sold. It is clear that ho had no authority to give such a receipt. Instead of paying the whole bid to the .constable, it appears that the defendants paid the balance, after deducting the rent and costs, to Armstrong, taking from him a transfer of the lease in which the amount of this balance is stated as the consideration. Armstrong was entitled to that amount from the constable if nothing but the malt-house was sold. So far as the lessors were concerned, this assignment of the lease was ineffectual to transfer it; at least it was in their power to avoid it, because it wanted the written sanction by them which the lease made necessary, and declared that in case of a transfer without such written sanction the lease and improvements should be forfeited. Whether they did afterwards sanction it does not appear, and is unimportant. That which was sold by the constable, and was the subject-matter of the contract of sale between the plaintiff and defendants below, was the malt-house, and the malt-house alone. No evidence was given of the value of the term apart from the malt-house. The truth is, as is apparent from the whole evidence, that the ground was let for its full rent, and the term independent of the improvements was therefore worthless, and it did not enter into any person’s mind as of any importance as an element in the sale. It was known that the purchaser might remove the malt-house, or if he wished to occupy the premises the landlord would continue the lease. In this view of the case the plaintiff in error has no just ground to complain of the refusal of the learned judge below to affirm his points as requested, and this refusal is all that is assigned for error. It is unnecessary, therefore, to consider what would be the effect of the Statute of Frauds in the case of a parol agreement for the sale of a term of more than three years. Judgment affirmed.