Opinion
October 21, 1935.
November 13, 1935.
Bailments — Forfeiture of bailee's interest — Failure to assert — Tender of balance unpaid.
Where a bailment, executed to secure the bailee for part of the purchase price of the goods bailed, provided that the bailor could declare the contract at an end and the bailee's right forfeited for failure to pay the installments when due, and the bailee defaulted in payment of an installment but the bailor did not exercise the forfeiture option, and demanded payment of the entire balance unpaid, the bailor could not, after tender by the bailee of such balance, then exercise the right of forfeiture given to him by the contract.
Appeal, No. 193, Oct. T., 1935, by defendant, from judgment of C.P., Bradford Co., Sept. T., 1934, No. 46, in case of W.O. Cunningham v. F.A. Kitchen.
Before KELLER, P.J., BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Affirmed.
Replevin. Before CULVER, P.J.
The facts are stated in the opinion of the lower court, by CULVER, P.J., as follows:
This was an action of replevin brought by the plaintiff to recover possession of a team of horses and a harness which were in possession of the defendant. At the trial of the case, owing to plaintiff's attorneys being unfamiliar with the laws of Pennsylvania (he having recently come here from another state), the court found it necessary to reopen the case in order that a gross injustice would not be done plaintiff.
The facts briefly stated, are as follows: The plaintiff, a poor man, came to this county from the State of Ohio, and rented defendant's farm, obligating himself to furnish a team of horses for use thereon. He was unfamiliar with the value of horses, harnesses and the like in this state, and requested the defendant to accompany him to a horse-dealer for the purpose of purchasing a team. To purchase the team selected, required more ready money than plaintiff had, he having but one hundred fifty dollars ($150), and defendant agreed to loan him one hundred dollars ($100) for that purpose. The team of horses and harness were purchased and plaintiff paid the $150 he had and defendant paid $100 (by some subsequent adjustment $25 was returned to plaintiff), and defendant to secure his loan of $100 had the plaintiff execute a contract of bailment covering the property in question to defendant.
When the first payment of $10 on the rentals provided for in the contract of bailment, plaintiff did not pay the same on the day it fell due, but four days later tendered payment to defendant and defendant refused to accept the same, saying that he declared and demanded that the full amount of the rental, to wit: One hundred dollars ($100) should be paid at that time.
There is no provision in the contract justifying him to declare the full one hundred dollars ($100) due, but, nevertheless, he did so. It is important to observe here that defendant at the time this first payment was tendered to him, did not exercise the forfeiture option given him by the contract of bailment. He did not declare the contract at an end and the bailee's rights forfeited because he did not make the payment of the first installment when due; he did not declare his intention of holding or demanding the property, but did refuse to receive the ten dollars ($10) monthly installment and demanded that the full amount be paid.
The plaintiff returned to his home and several of his neighbors came to his rescue, provided the full one hundred dollars demanded by defendant, and the plaintiff accompanied by several of his neighbors, as witnesses, went to defendant's home and there tendered him the full one hundred dollars in accordance with his demand. When this full amount was tendered him, he then for the first time refused to receive it and declared that he would exercise his right of forfeiting all plaintiff's rights in the contract of bailment and would take the two hundred fifty dollars ($250) worth of property for the one hundred dollars he had loaned defendant and which defendant at that time was tendering him in full in the presence of several witnesses.
Defendant having refused to receive the one hundred dollars or surrender possession of the property, plaintiff issued a writ of replevin and defendant gave to the sheriff a property bond and retained possession of the property and still has it.
We instructed the jury that the measure of damages was the value of the property at the time defendant refused to deliver possession of the same, but that in equity, defendant having provided one hundred dollars of the purchase money, he should be allowed a credit of that amount, and to this counsel for defendant agreed upon the record, and the jury was instructed to deduct from the value of the property the amount of one hundred dollars defendant furnished towards its purchase, and they rendered a verdict for the balance.
The defendant in exacting a contract of bailment to secure him for the one hundred dollars he loaned plaintiff in the purchase of the property mentioned, himself created the conditions under which he could retake the property. According to the strict reading of the contract, defendant might have declared a forfeiture of all plaintiff's rights in the property when plaintiff failed to pay the ten dollars ($10) installment due May 1st. This, however, he did not do. He waited until plaintiff four days after the installment was due tendered the payment thereof, and then instead of declaring a forfeiture of plaintiff's right in the contract, he waived that privilege and declared and demanded the full one hundred dollars ($100) due and plaintiff immediately, with the assistance of his neighbors, raised that amount and tendered it to the defendant, when he then, after the full amount as he declared it to be was offered him, refused to accept the same and attempted to declare the lease void and take the entire property for the one hundred dollars plaintiff owed him and was then and there offering to pay him. This, we believe, he could not do. It was too late to declare the forfeiture after plaintiff had tendered him the full amount due him in accordance with his demands. We are, therefore, of opinion, that notwithstanding the manner in which plaintiff's case was presented in court, the verdict is right and should stand.
Verdict for plaintiff and judgment entered thereon. Defendant appealed.
Error assigned, among others, was dismissal of motion for judgment n.o.v. and new trial.
John P. Vallilee, of Schrier Vallilee, for appellant.
B. Nathaniel Richter, for appellee.
Argued October 21, 1935.
The judgment is affirmed on the opinion of President Judge CULVER. The statement in the opinion that "It was too late [for the defendant] to declare the forfeiture after plaintiff had tendered him the full amount due him in accordance with his demands," is sustained by the language used by Mr. Justice KEPHART in the case of White Co. to use, etc. v. Union Transfer Co., 270 Pa. 514, 517, 113 A. 432.