Latimer v. Groetzinger

OPINION, Me. Justice Geeen : The only question before us, in this case, is whether a right of distress for the whole $2,500 existed in the defendant Gro-etzinger, at the time of the issue and service of the-landlord’s warrant. It was under this warrant that the goods of the plaintiff were seized, and if this was done without authority of law, the plaintiff was entitled to a verdict by direction of the court below. The record does not raise the question whether Groetzinger would be entitled to maintain an action for breach of the covenant contained in the articles of agreement between himself, and Marshall and Anderson, against engaging in the business of buying and selling carpets and oil-cloths, and hence that question is not to be considered. The argument for the [211] appellants does and must rest upon the proposition that a right of distress in Groetzinger arises from the articles of agreement made by him with Marshall and Anderson. If it cannot be found there, it has no existence. The first clause of the articles is a lease by Groetzinger to Marshall and Anderson of the premises described, for twenty-four months from April 1, 1888, “ for the monthly rent of $416.67, payable monthly in advance “ until the whole amount of said rent is paid.” Then follows -another clause upon which the claim to the right of distress in question is founded, in these words: “ The said second parties, for themselves and their heirs and assigns, and for value received, do hereby agree with the said first party, that they the said second parties, for themselves, their heirs and assigns, will not engage in the retail or wholesale business of bargaining for, buying and selling carpets and oil-cloths, in any manner, shape, or form, or in any manner whatever, upon the above-described premises, for and during the term of twenty-four months' aforesaid, under the penalty of $10,000, to be paid by the said lessees, or their assigns, in the nature of rent, in addition to the amount above mentioned, in equal monthly instalments at the times of payment of the rent aforesaid, computing from April 1,1888.” It will be observed that thus far the agreement provides that the premises are leased to the lessees for a monthly rent of $416.67, payable in advance; and if the lessees engage in the business of buying and selling carpets and oil-cloths on the premises, they are also to pay a “penalty” of $10,000, in addition to the amount already mentioned, “ in the nature of rent,” and in equal monthly instalments at the times the “ rent aforesaid ” is paid. Undoubtedly the covenant not to engage in the carpet and oil-cloth business, and, if it be violated, to pay a “penalty” of $10,000, is a mere personal covenant of the lessees. The penalty is to he paid, not for the use of the premises, hut as a punishment for the breach of the covenant not to carry on a certain business on the premises, and it is to be paid “in addition ” to the amount of the rent previously named; that is, a certain fixed “ rent,” by name as such, is to be paid for the use of the premises, and then, if a certain business is carried on, there is to be paid, in addition to the rent, a fixed [212] “penalty” of $10,000. The one sum, $416.67 monthly, is to be paid as rent of the premises, and another sum, of $10,000, is to be paid as the penalty for violating a personal covenant. The distinction in the character of the two sums to be paid is so very plain that further discussion of that subject seems to be unnecessary. For the sum that is “ rent,” a distress would lie, if there is no other difficulty in the way, but for the sum that is penalty for breach of a personal covenant, it needs only to be said, there is no remedy by distress. But it is argued that the penalty is to be paid “ in the nature of rent,” and therefore it is to have all the qualities and incidents of rent. If it is in the nature of rent, or to be paid in the nature of rent, and yet, in fact, is not rent, it cannot have the incident of distress, because that incident pertains only to that which, in strict legal contemplation, is rent. So far as this clause of the lease is concerned, there is no stipulation for a right to distrain, and the right cannot follow by mere implication, when the money to be paid is in reality only a penalty for the violation of a personal covenant. But the last sentence of this clause preserves the distinction between the penalty and the rent, when it provides that the penalty shall be paid, “ in equal monthly instalments at the times of payment of the rent aforesaid, computing from April 1,1888.” Now, “ the rent aforesaid ” is the sum of $416.67 to be paid monthly in advance, and is in fact the only “ rent ” which is to be paid for the use of the premises. When, therefore, the agreement expressly designates the “ rent aforesaid ” as a different subject-matter from the penalty, it cannot be regarded as treating them in an identical sense. In the last clause of the agreement a right of distress is reserved, in these words : “ And should the lessees at any time permit the said rent to be in arrears and unpaid, then the said lessees, for themselves and their heirs, executors, and administrators, waive the benefit,” etc., “ and that the said party of the first part may enter, levy, and distrain for the rent so in arrear; and that the said entry, levy, distress and sale, with all its incidents, shall be governed and regulated by the laws, usages, and customs of Pennsylvania,” etc. It must be noticed that this part of the clause is only operative when “ the said rent ” is in arrears and unpaid, and the right to distrain [213] is limited to tbe “ rent so in arrear.” There is nothing in the clause that reserves a right to distrain for the “ penalty,” or any part of it, but it is expressly limited to the “ rent.” So important and exceptional a right as the right of distress cannot be given by way of implication, and if it could, there is nothing in this lease upon which to found such an implication. On the contrary, the distinction between that which is rent, and that which is penalty, is preserved throughout the agreement, and they are not confounded together in any instance. The assignments of error are all dismissed. Judgment affirmed.