McCrossan v. Reilly

Opinion by Morrison, J., This is an action of trespass, and a verdict and judgment thereon having gone against the defendant he appealed. The facts of the case are somewhat complicated, and, at the risk of being tedious, we will endeavor to state the material facts in this opinion. Charles Thon was the owner of a certain dairy farm in Penn township, Allegheny county, and on February 18, 1895, he leased this farm to one John Habbegger for the term of seven years. This lease was in writing. Afterwards, by sheriff’s sale, said lease became vested in H. F. Doris, who stocked the farm and rented and used the same as a dairy, Joseph Shafer being his manager. On January 3, 1898, Doris entered into a bailment contract with Shafer whereby Doris let to Shafer all — 634 — the personal property oh the farm, including, as stated in the contract, thirty cows, but, as matter of fact, it is conceded that there were only eighteen cows on the farm at the time. Shafer was to pay $83.83 per month during the continuance of the lease, take good care of the property and to deliver up and return the same, together with all replacements and additions made, and further, not to mortgage, sell or rent the same or assign the agreement, or in any way'part with the possession of the said property, or remove the same from the said premises, unless Doris gave his consent thereto in writing. This written bailment provided that Shafer was to hold the farm under and subject to the provisions of the lease made by Thon to Habbegger, and that Shafer was to pay to Thon, in addition to the monthly sum of $83.33, the rental payable under the terms of the Thon-Habbegger lease as the same became due. On March 1, 1898, Doris assigned all his interest in above bailment to P. J. Reilly. At various times from April to July, 1898, Shafer purchased twelve cows from one T. J. Reneker, a cattle dealer, Shafer to pay for the same in installments, but if he found that he could not meet these installments he was to return the cattle to Reneker, the ownership of the cattle to remain in Reneker until they were paid for. While the cattle remained with Shafer he received two additional cows from Reneker, the same to be put in good condition. In the latter part of July, 1898, Joseph Shafer caused the fourteen cows, delivered into his possession by Reneker, to be driven to a farm about a mile from the Thon farm and there delivered the cows into the possession of Reneker on said farm, called the Limegrover farm. Reneker took possession of the cows on the latter farm and made a bailment of them to Mary A. McCrossan, plaintiff in this case, who was then living on a farm called the Johnson farm. Mary A. Mc-Crossan had the cows driven from the Limegrover farm to the Johnson farm, which she was occupying. In July, 1898, Patrick J. Reilly came on the Johnson farm and took the cows from the possession of Mary A. McCrossan and drove them to and placed them on the Thon farm, and afterwards, on August 4, 1898, he issued a landlord’s warrant against Joseph Shafer, and thereunder he caused the cows to be sold. Mary A. McCrossan, plaintiff, then brought this action in trespass to — 635 — recover damages from ReiUy for the unlawful taking and conversion of the said, cows by him. As to the above facts we do not understand there is any serious dispute. We understand it to be conceded that there was no rent due and unpaid on the Thonfarm under the Thon-Habbegger lease of February 18,1895, at the time Reilly seized the cows, all rent due on the farm having been paid until the following October. The bailment contract of January 3,1898, between Doris and Shafer, was entirely in regard to personal property, and it contains no authority to proceed by landlord’s warrant to collect the installments or any of them mentioned therein. Therefore, when Reilly became the assignee of Doris under said bailment contract, it gave him no .right to proceed by landlord’s warrant to collect the installments falling due under said contract. We think it may be stated as a legal proposition that installments reserved in a bailment contract for personal property furnish no ground for the issue of a landlord’s warrant, unless expressly so provided hi the contract. In Commonwealth v. Contner, 18 Pa. 439, the Supreme Court held, as stated in the syllabus: “ Rent must issue out of land ; and if real and personal property leased are so mixed together in the lease that it cannot be determined how much of the consideration is to be paid for the chattels, and how much for the use of the real estate, there can be no distress for nonpayment of it.” That case was afterwards qualified in Mickle v. Miles, 31 Pa. 20, where it was said by Lowry, J.: “ The ordinary definition of rent, as a profit issuing yearly out of lands and tenements corporeal, is defective in overlooking some of the cases that belong to the class; as where a furnished house or a stocked farm is leased, which are common cases. ... In such cases the personal property is really a part of the consideration of the rent, and it is only by a fictitious accommodation of the case to the defective definition that it can be said that the rent issues exclusively out of the land.” But that modification does not authorize the collection of installments due on a bailment contract for personal property by landlord's warrant. Therefore, on the facts in the present case, we cannot see that Reilly was entitled to issue a landlord’s warrant and sell the cows, bailed by Doris to Shafer, by virtue of the bailment contract; and certainly he could not — 636 — sell them for rent due on the Thon farm, because that rent had been paid in advance until October 1, 1898. But assuming for the purpose of argument that Reilly had authority to issue a landlord’s warrant to recover payments due under the Doris-Shafer lease or contract of bailment, it will still be found that he had no right to seize the fourteen cows while they were in possession of Mrs. McCrossan on the Johnson farm. This because there was no clandestine or fraudulent removal of the cows from the Thon to the Limegrover farm. The cows were removed from one farm to the other about eleven o’clock A. M., shortly prior to July 25,1898, and the landlord’s warrant was not issued by Reilly until August 4, 1898. . The learned counsel for the appellant concedes in his argument that such removal of the cows in the daytime was not clandestine, but he contends that it was fraudulent. We understand the law to be that an open removal of the tenant’s goods from the demised premises, in the daytime, in order to secure them from distress for rent, is not a clandestine or fraudulent removal, and, without more, is not sufficient to justify the landlord in following them, and distraining within thirty days: Grace v. Shively and another, 12 S. & R. 217; Hoops and another v. Crowley, and others, 12 S. & R. 219; Grant & McLane’s App., 44 Pa. 477; Owens v. Shovlin, 116 Pa. 371. The statute as to the fraudulent removal of goofis so as to avoid distress applies only to the goods of the original lessee and his assignee, which have been removed from the demised premises, not to goods taken by a creditor therefrom with the assent of the tenant in payment of a bona fide debt, though the creditor knows the rent is due, and apprehends the landlord may distrain: Taylor’s Landlord and Tenant, sec. 577; Adams v. La Comb, 1 Dallas, 440. In Grace v. Shively, 12 S. & R. 217, Tilghman, C. J., said : “ But where there is no evidence of more than a simple removal in the daytime without the knowledge of the landlord, there is no ground for presumption of fraud, nor will the law suffer it to be presumed. The tenant is not bound to give notice to the landlord that he is about to remove his goods, nor is he under any obligation not to remove them.” At first blush we were inclined to think that the question — 637 — of whether Shafer fraudulently removed the cows was for the jury, but an examination of the cases and reflection brings us to the conclusion that there was no evidence whatever of fraud in the removal of the cows in the present case. Shafer was indebted to Reneker for them and, finding that he could not pay them, it was his duty to return them to Reneker. Upon both grounds our judgment is against the right of the appellant to distrain. We are clearly of the opinion that he could not distrain for the payments due under the Doris-Shafer bailment contract; we are equally clear in our opinion that he could not distrain on account of rent due on the Thon farm because it is conceded that' no rent was due at that time. Therefore, we are clearly of the opinion that the appellant was a trespasser, pure and simple, in taking the cows from the possession of the plaintiff and afterwards selling them on his landlord’s warrant. The remaining question for consideration is the measure of damages. Assuming that the plaintiff was entitled to recover the full value of the cows, with not to exceed legal interest on the value from the time of the taking to the recovery of her judgment, there is sufficient evidence to sustain the verdict and judgment for $600. The appellant contends that inasmuch as the plaintiff was only the bailee of the cows that she was only entitled to recover the amount she had paid on account to Reneker, and that appellant ■would still be liable to Reneker. We think, however, that the plaintiff had a right to recover the market value of her cows, she being liable over to Reneker for such interest as he had therein: Lyle v. Barker, 5 Binney, 457 ; see opinion of Tilghman, C. J., p. 459; 28 Am. & Eng. Ency. of Law (2d ed.), p. 676, where it is said: “ A bailee is universally recognized as having, such a special property in the chattels bailed as will enable him to maintain trover therefor against third persons who wrongfully deprived him of possession.” And on page 729 : “ Though the plaintiff has only a special or limited interest in the chattels converted, the general ownership being in a third person, he may still recover, as against a stranger to the title, the full value of the chattels, and is not limited to recovery for the value of his special or limited interest.” — 638 — And on page 730 : “ Where the plaintiff has only a special limited interest in a chattel converted, with a right to possession, and the general property is in the defendant, the plaintiff is entitled to recover only the value of his special or limited interest, and not the full value of the property.” See Guttner v. Pacific Steam Whaling Co., 96 Fed. Repr. 617; Atkins v. Moore, 82 Ill. 240. We think the cases of Srodes v. Caven, 3 Watts, 258; Rose et al., v. Story, 1 Pa. 190, and Levan v. Wilten, 135 Pa. 61, cited by counsel for appellant, are not controlling as to the measure of damages under the facts in the present case. A careful consideration of the evidence, the fifteen assignments of error and the arguments of counsel, leads us to the conclusion that the assignments should be dismissed, and the judgment is affirmed.