Strafford v. Walter

Opinion by Rice, P. J., This was an actiou of replevin for goods seized by the defendants under'a landlord’s warrant issued by Henry J. Walter, the principal defendant, to John Dunn, the other defendant, [500] on September 4, 1903. The plaintiff went into possession under a lease dated June 15, 1903, for a term of one month from that date “ at a rent of $30.00 per month payable in monthly payments in advance, the first payment to be made on the 15th day of June, A. D. 1903.” The lease was signed and sealed by J. C. Bell as lessor, but in tbe premises there is added to his name the abbreviation “ Agt.” It is alleged in the statement and not denied in the affidavit of defense, that the plaintiff paid monthly in advance to J. C. Bell, agent, all the rent which had accrued up to and including the month beginning August 15, 1903. Upon this showing, without more, there was no authority in anyone to distrain on September 4, 1903. In answer to this prima facie ease of the plaintiff the defendant Walter alleges, (1) that the leasehold of said premises was assigned by the owner to the New Cosmos Building and Loan Association on November 24, 1902, as collateral security for a mortgage loan made by him upon the demised premises, which mortgage is due and unpaid; (2) that he, Walter, as secretary and agent of said association, deputed Bell to collect the rent and to account to him for the association; (3) that in pursuance of said arrangement Bell as agent signed the lease in question; (4) that prior to June 15, 1903, he, Walter, notified the plaintiff that he had revoked the agency of Bell and that thereafter plaintiff should pay his rent to him, Walter, as agent of the New Cosmos Building & Loan Association. Assuming all these allegations to be true and capable of proof we fail to see that any authority is shown for the landlord’s warrant in question. It would have been more satisfactory if defendant had set forth in, or attached to, the affidavit, a copy of what he calls the assignment of the leasehold. Whenever the sufficiency of an affidavit of defense rests upon the proper interpretation of papers or documents referred to, and not averred as inaccessible, they should ordinarily be set forth in full: 1 P. & L. Digest of Decisions, 134. There is obvious difficulty in inferring that what is vaguely described as an assignment of the leasehold made by the owner of the premises in November, 1902, related to a leasehold which was not created until seven months afterwards. But assuming for the purposes of the case that it was drawn so as to authorize the assignee to lease the premises and collect the rent, there then [501] arises the further difficulty that the lease accepted' by the plaintiff was from J. C. Bell, agent. He had covenanted to pay the rent to him, and it is argued by appellee's counsel that he did not thereby become the tenant of an unknown landlord, and that J. C. Bell, agent, or his assignee of the lease, who must at the same time be the owner of the reversion, is the only person to whom plaintiff owed any duty, and the only person who could legally distrain. In support of these propositions he cites Holt v. Martin, 51 Pa. 499, and Seyfert v. Bean, 83 Pa. 450. But granting that under the authority of Barrett v. Bemelmans, 168 Pa. 122, it was competent for Bell’s undisclosed principal to revoke the agency and thereafter compel the tenant to pay the rent to the principal, it is still true that the lessee was discharged by payment to the lessor named in the lease unless his agency had been revoked and the lessee notified thereof prior to such payment. Taken as it reads, the defendant’s allegation as to the notice of revocation of Bell’s agency relates to a notice given before June 15, 1903, the date of the lease. But as it is admitted by the defendant that Bell had authority to make the lease on that date and to collect the rent accruing thereunder, it is apparent that his agency had been restored, in which case the prior notice would not be effectual to deprive the plaintiff of the right to pay rent to him, or that a mistake was made in drawing the affidavit as to the time when the notice of revocation was given. Counsel for appellants explains the apparent discrepancy upon the latter theory, and says that in the court below he asked leave to amend the affidavit of defense and aver that notice was given immediately after June 15, 1903, and before any rent was paid by the plaintiff under the lease, and that the court stated that such amendment would be granted if the court should be of the opinion that it was material. Unfortunately the amendment was not made, and in the absence of an agreement of counsel that the affidavit was treated in the court below and may be treated here as amended, we must take it as it reads. But even if the affidavit had been amended, as stated, there still would remain the objection that H. J. Walter is neither the owner of the reversion nor the assignee of the lease, or of the rents accruing thereunder, nor the principal of J. C. Bell, agent, the lessor; therefore no right in Walter to distrain is [502] shown. In any view that may be taken of the affidavit the court was right in holding, that it was insufficient to prevent judgment. Judgment affirmed.