Abel v. M. H. Pickering Co.

Opinion by Trexler, J., ■ ■ This is an action, of trespass brought by Mrs. H. Abel against M. H. Pickering Company for damages alleged — 443 — to have been sustained in the removal of certain goods from her house, the goods having come into her possession from her husband, who had received them from the defendant under what is generally known as an installment lease. The sum to be paid for the goods was a balance of $31.50, payable in weekly installments of $1.00 until the entire amount of rent was paid. After a full compliance with the lease a further payment of fifty cents entitled the bailee to a bill of sale whereby the title to .the goods would pass to him. The bailee, the husband of the plaintiff, defaulted in his payments, having paid but $4.00 between the date of the lease, June 27, 1911, and February 5, 1912, the date of the alleged trespass. During that period Abel disappeared, having first, as the wife claims, transferred the goods to her. On February 5, 1912, the defendant’s agents went to the house of Mrs. Abel, and entering peaceably, forcibly removed the goods from the premises, their efforts being resisted by Mrs. Abel and, according to her story, committed an assault and battery upon her and upon her daughter. The lower court took the position that the bailor had no right to take the goods without previous demand and reasonable notice; that there having been no demand upon Abel between August, 1911, and February, 1912, and the payment prior thereto having been made irregularly, the bailor had waived its right of insisting upon strict performance and was required to give reasonable notice before proceeding, citing in his opinion refusing a new trial Goff-Kirby Coal Company v. Marine Coal Company, 31 Pa. Superior Ct. 60. This we think was error. It is true that when parties by a course of dealings show that they have no intention of holding each other to a strict compliance of the contract, either party cannot take the other unawares by insisting upon an exact and literal carrying out of the provisions of the contract and upon failure so to do on the part -of. the other party declare a forfeiture or — 444 — rescission. The case before us is different. The condition of affairs was due to no act of the bailors. Its endeavors to collect were unavailing owing to the absence of de-. fendant. The situation was not one of its making. There was no act of its officers or agents that showed that they waived any of the provisions of the contract. The mere inability to collect certainly does not amount to a waiver. The contract between the parties under our Pennsylvania decisions was a bailment: Barnett v. Fein, 41 Pa. Superior Ct. 423; Groves v. Lewis, 53 Pa. Superior Ct. 511. The assertion of the right to take the bailed goods Was not to invoke a forfeiture but was the enforcement of a contractual obligation expressed in words and implied in law: Jones v. Wands et al., 1 Pa. Superior Ct. 269; Cobb & Chase v. Deiches, 7 Pa. Superior Ct. 252. The acceptance of the installments after they were past due was not a waiver of the conditions of the lease. A landlord accepting overdue rent does not waive a clause providing that all rent reserved shall become immediately, due and payable upon default for five days on the part of the tenant to pay any monthly installment: Teufel v. Rowan, 179 Pa. 408. As was said in the above case, "the acceptance of a portion of the amount due and failure to exact all that was due at that time, cannot be a waiver of the contract, but at most is only evidence of a willingness to indulge the debtor. It has never been held that mere delay of suit, or neglect to rigorously exact his money on the day it is due, is evidence of a waiver of his contract right: Atkinson v. Walton, 162 Pa. 222. If the bailee has failed to comply with the terms of the lease under which he holds the property, the bailor has the right to retake the property under the very terms of the bailment: Barnett v. Fein, 41 Pa. Superior Ct. 423. That the goods were in the possession of a third party .does not alter matters. Her.rights can rise no — 445 — higher than those of the original bailee: Barnett v. Fein, supra. Indeed under the contract a change of possession from the bailee to anyone else operates as a breach of the contract and permits the owner to retake possession. Whilst the wife’s possession may be regarded as that of the husband, in the case before us plaintiff’s counsel argued that she was not bound by the provisions of the contract. It matters not what position she assumes, her rights in the premises must be determined by the contract and under that the husband could confer no rights on her which would give her the right of possession independently of him. We are convinced that under the above decisions the court was wrong in the position it took in regard to the right of the bailor to retake the property. Concluding that the bailor had the right to recover possession, the next question involved is as to how far he is permitted to go in order to retake his goods. If his retaking of the goods is opposed, can he use force sufficient to overcome the resistance? The contract provides that the bailors may use such force as they may deem necessary, they to be the sole judges of the force necessary. This provision of the contract does not help us in the decision of the question. It is entirely too broad in its terms to be sustained in its full application. The answer must be found in a consideration of the decisions which declare how much force, if any, a person may lawfully use in retaking personal property, the title to which is in him. Blackstone, in Kis Commentaries, Book III, sec. 4, declares that "when any one hath deprived another of his property in goods or chattels personal, the owner may lawfully claim and retake them wherever he happens to find them so it be not in a riotous manner or attended with breach of the peace. If therefore he can so contrive it as to gain possession of. his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property, and as if individuals were once — 446 — allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.” The above applies to cases where the property is wrongfully acquired, much more would the reasoning apply where the original acquiring was lawful. Where the possession of personal property is peaceably acquired, the owner may not resort to violence whether the possession is lawful or not: 3 Cyc. 1078; 2 Am. & Eng. Ency. of Law (2d. ed.), p. 983. The cases in the several states are not in harmony, some courts holding that the owner of property is only liable for excessive force in retaking his property; that he may use such force as is reasonably necessary to overcome the resistance wrongfully interposed. Others hold that where opposition is offered to the retaking of the property, the owner must resort to the remedies offered by proceedings at law. The matter has not been decided by any appellate court in this state. In North v. Williams, 120 Pa. 109, a case arising under a lease of a piano payable in monthly installments, the Supreme Court by Green, J., held that an entry into the dwelling by artifice and the removal of the piano did not constitute trespass. In deciding this case in favor of the defendant, the court uses the expression “no violence or unnecessary force was used and all that was done was what the defendant had a legal right to do without let or hindrance, take away the piano.” This would seem to recognize the use of necessary force. The above statement, however, was not necessary to a decision of the case, as the facts disclose that no force at all was used, page 113. We think that the correct view is that where possession of property has been lawfully acquired as by a — 447 — conditional sale or bailment and the agreement between the parties allows the owner to retake when certain conditions arise he may retake if he can do so without force, but when the taking is resisted he may not use force, he must have his remedy by proceedings at law. This was the view taken by the lower court and we think rightly so and seems to be sustained by the weight of the 'authorities. The cases sustaining this view and those to the contrary are found set forth in the notes in Cyc. sec. 1078, and 2 Am. & Eng. Ency. of Law (2d. ed.), p. 983; vol. 6, p. 479; vol. 23, 974. As this case goes back for retrial we wish to state that we cannot agree with the statement contained in the opinion of the court refusing a new trial as to all the items of damages. Among them is included “the value of the property seized, for the property in her possession was a thing of value that cannot be taken from her, except by due process of law.” The title to the property was in the bailor under the very terms of the contract. The right of possession was in the husband during the continuance of' the contract. He lost it by default. He had no right to dispose of the goods and the wife acquired no independent title by his turning them over to her. Even if the goods were wrongfully retaken he would be the one to recover and in his name suit would have to be brought and his damages would not be the value of the goods but the value of his special interest: Smith v. Case Threshing Machine Co., 50 Pa. Superior Ct. 92. If the bailor recognized her as the bailee in his stead her rights under the lease would be the same as the original bailee. The title to the goods with the right of possession being in the bailor as was said in Moore v. Shenk, 3 Pa. 13, “the act of recaption was not necessary to re-vest the title in bailors but was a mere remedy like an action to regain possession by virtue of a title complete. The damages therefore to which the plaintiff in this — 448 — case is confined are the wrong done to her in the use of force on the part of the bailors, and at the discretion of the jury punitive damages. The judgment is reversed and a venire facias de novo awarded.