Wetherill v. Gallagher

Opinion by Mr. Justice Mestrezat, Notwithstanding the numerous assignments of error and the very elaborate brief of the learned counsel for the appellant, he has discussed the law involved in the case under two heads. The trial judge has found and stated the material facts in his adjudication, and on those facts the decree may well be affirmed. [641] 1. Under all our authorities, the contract between the plaintiffs and The Downing Paper Company was a bailment of the boilers and they continued to be the personal property of the plaintiffs. They were trade fixtures and such as a tenant may remove during the continuance of his term: Hey v. Bruner, 61 Pa. 87. On failure to comply with any of the covenants of the bailment, it was stipulated that the plaintiffs, who were the bailors, should have “ the right to declare this lease void .... and to take immediate possession of said property wherever they may find the same.” The paper company, the bailee, failed to pay the stipulated rent for the boilers as it became due, and on June 20, 1904, the plaintiffs exercised their right to declare the termination of the lease and take possession of the property. One month prior to this date, the paper company was adjudged a bankrupt and the plaintiffs’ property was then in the possession of the receiver. A few days after the bailment had been terminated, the receiver directed the watchman on the premises to admit the plaintiffs for the purpose of removing the boilers. On the same day Gallagher, the paper company’s lessor of the premises, notified the plaintiffs “ that the boilers were obtained by The Downing Paper Company for the purpose of replacing other boilers which wore part of the building rented to them as a whole, and claiming that the new boilers were part of the real estate, and stating that he would retain the boilers.” The defendants’ first contention is that the plaintiffs had no right to re? move their boilers without replacing the old boilers in the place they originally occupied in the manufacturing plant. The paper company secured the new boilers because it desired and needed additional steam-producing capacity for its paper manufacturing plant. The plaintiffs had nothing whatever to-do with removing the old boilers. This was done by the paper company which removed them to an adjoining lot on the same premises. Neither did the plaintiffs erect their boilers in the paper manufactory. It is true they supervised the location of them, but the paper company built the sub-foundation, provided the building to inclose them, and erected the boilers on the foundation. Why, then, should the plaintiffs replace the old boilers in the manufacturing plant ? They did not remove them, nor did they receive them as part payment for the. [642] new boilers. .They committed no waste of the premises nor did they do any injury to the premises as they did not detach and remove the old boilers. In a word, they had nothing to do with the old boilers or with removing them from the manufacturing plant. Under the circumstances, therefore, the plaintiffs were not required to restore the old boilers-to their former place in the plant, before they could annul the lease with the paper company - and resume possession of the new boilers, the title to which remained in them. 2. The other contention of the appellants is that the plaintiffs had no right to remove their boilers without paying the rent and restoring the property to its original condition. The learned judge correctly found that “ the (new) boilers can be removed by opening the wall of the building in which they are set,” and in the decree, the court has directed “ that the said complainants be required to restore any portion of the premises which may be affected by the removal' of the said boilers to its present condition.” Of this contention, therefore, the remaining cause of complaint is that before retaking their property the plaintiffs should have paid’ the arrears of rent. But as we have held the paper company held this property as bailee, and the bailment was, for sufficient cause and within its terms, declared by the plaintiffs atan end on June 20, 1904. The premises were 'then in the hands of a receiver in bankruptcy who properly conceded the title to be in the plaintiffs and also their right to remove the property. At that time there was $1,000 of rent in arrear, but the landlord had not distrained and hence the tenant could have removed his personal property from the premises and it would not then have been subject to distress, unless fraudulently removed. It is, however, different with the property of a stranger which may be distrained while on the demised premises, but cannot under any circumstances be followed and made subject to payment of arrears of rent. Here, there was no privity between the landlord of the premises and the plaintiffs and, after the annulment of the bailment, the boilers were the property of a stranger who could remove them, unless a distress had previously been levied for the rent. In order to subject personal property to the payment of rent due for the demised premises, the landlord may distrain the property, or where the property [643] of the tenant has been taken in execution or has been assigned for the benefit of creditors, the landlord is, under present legislation, entitled to bo paid one year’s rent out of the proceeds of sale. Neither of these conditions existed here at the time the plaintiffs declared the termination of the lease and were entitled to the possession of their property. If the paper company had then been in possession, it could have been compelled to deliver the property to the plaintiffs. As it was, the property was in custodia legis, and the receiver became the trustee of the plaintiffs and hold the property for them. It was then beyond the grasp of the landlord of the premises, and he could not follow and subject it by legal process to the payment of his rent. We fail to see that the plaintiffs have done or are doing anything inequitable in this litigation. They are simply insisting upon their rights under the contract with the paper company. The property in controversy belongs to them and neither the paper company nor the landlord of the demised premises has title to it or the right to retain it. The plaintiffs did not get the old boilers nor the value of them, and are not responsible, either in law or equity, if the paper company removed and disposed of them. That is a matter between the owner of the premises and his lessee, the paper company, and with which the plaintiffs have no concern. The latter have done equity and, therefore, have a right to ask equity. We think that, under the undisputed facts of the case, the learned trial judge reached the proper conclusion, and, therefore, the decree of the court below is affirmed.