Whiting & Co. v. Lake

Mr. Justice Sterrett delivered the opinion of the court, The plaintiffs’ goods on the premises were distrained for three months’ rent, due April 1st 1875, under the lease from Bishop Simpson and wife to Henkle & Bro. No question was raised as to the amount of rent in arrear or the regularity of the proceedings, nor was it claimed that the goods were such as are exempt from distress in the interest of trade, &c.; but the contention, on the part of the plaintiffs, was that they were not liable to distress: 1st, Because the lease to Henkle & Brother, under which the rent accrued, having expired, and the relation of landlord and tenant as between them and the lessor having ceased, the latter had no right to distrain the goods of a stranger on the premises; and 2d, Because the plaintiffs were in possession under a lease from the owner of the premises, and therefore their goods were not liable to distress for rent due by the former tenants, Henkle & Brother. These propositions embrace everything that was urged in answer to the defendant’s avowry. The first proposition is based on a misapprehension of the Landlord and Tenant Law. The Act of March 21st 1772 provides, that “ it shall be lawful for any person having rent in arrear or due upon any lease for life or lives, or for one or more years or at will, ended or determined, to distrain for such arrears, after the determination of their respective leases, in the same manner as they might have done, if such lease or leases had not been ended or determined; provided, that such distress shall be made during the .continuance of such lessor’s title or interest.” The Statute of Anne, from which ours is copied, limited the landlord’s right of distress to six months after the determination of the lease; but our act authorizes it whenever there is rent in arrear and the landlord retains the title. If the plaintiffs went into possession under Henkle & Brother, and are holding over after the termination of their lease, or if they were in without authority from any one, it cannot be doubted that their goods, on the premises, were liable to distress for rent due by Henkle & Brother. As a general rule, to which there are some exceptions, in the interest of trade, &c., the goods of a stranger, on [353] the demised premises, are liable to distress for rent: Kessler v. McConachy, 1 Rawle 435; Price v. McCallister, 3 Grant 248; Beltzhoover v. Waltman, 1 W. & S. 416, and Karns v. McKinney, 24 P. F. Smith, 387. This being so, they must, under the very terms of the act, be liable after, as well as before, the determination of the lease, in the same manner as if the lease were still in force: Moss’s Appeal, 11 Casey 162; Rosenberger v. Hallowell, Id. 369. Any other construction would be a virtual repeal of the Act of 1772. The learned judge was therefore right in qualifying, as he did, the plaintiffs’ first point, and in refusing their second, third and sixth points. This disposes of the assignments designated by the same numbers. If the allegations of fact embodied in the second proposition were true, they would-be a complete answer to the avowry. If, at the time of the distress, the plaintiffs were in possession under a lease to them from the owner of the property, the relation of landlord and tenant thus existing between them,‘would forbid that their goods should be seized to satisfy rent due by the former tenants: Clifford v. Beems, 3 Watts 246; Beltzhoover v. Waltman, supra. But, was there any proof of such relation? The court below thought there was not, and in the end gave binding instructions to the jury to find for the defendant, and ascertain the amount of rent due. If there was any testimony from which the jury might reasonably have found that the plaintiffs had leased the premises from the owner or an authorized agent, it should have been submitted to them. It was not pretended that they leased directly from Mrs. Simpson, the owner, or that they ever had any personal communication with either her or her husband on the subject. They claimed to have leased from Doctor Pennington, who, as they alleged, was the agent of Mrs. Simpson, and offered testimony for the purpose of showing that they remained in possession after the termination of Henkle & Brother’s lease, under an agreement with hirú to pay a weekly rent for the short time they wished to occupy the premises; but they utterly failed to show that Pennington was ever authorized to lease the premises, or that the owner had done or omitted to do anything that would have the effect of estopping her from denying his agency. It was not competent to prove Pennington’s authority by his declarations. Nor were his acts, done without her knowledge or authority, any evidence of his agency. It was shown that he had authority to lease rooms on the second and fourth stories of the building, and collect the rents thereof, for which he held a power of attorney, defining and limiting his authority to that particular matter. If the plaintiffs had examined this they would have seen that it did not authorize him to lease the premises in question. The only semblance of authority that he had was testified to by Bishop Simpson. In view of Henkle & Brother vacating the premises, Mrs. Simpson had proposed to give Pennington $100 if [354] he would find her an approved tenant for one year at $2000; but the same witness testified that “ neither he nor any other person was authorized to lease the property in any shape or form, but simply to give her information, in case he could find a tenant;” and he further said that the reason of this was that Mrs. Simpson was unwilling that the store-room should be occupied by any one that she did not first approve. The testimony on this subject is most pointed and emphatic that the proposition to find a tenant for a year “ did not embrace the right in anybody to make a lease, but simply to find a tenant and report.” Outside of Pennington’s declarations, which were not evidence, the testimony entirely fails to show that he had any authority to lease the premises in question. The state of the evidence was such that it would have been the duty of the court below to set aside a verdict in favor of the plaintiffs. This being the ease, there was no error in giving binding instructions to the jury to find for the defendant; but it would have been more orderly to have so instructed them in the first instance. The assignments of error are not sustained. Judgment affirmed.