Opinion
October 3, 1929.
November 18, 1929.
Replevin — Rent — Salesroom — Distraint — Act of March 21, 1772, 1 Sm. L. 370 — Automobile — Course of business.
In an action of replevin to recover possession of an automobile, the evidence established that the plaintiff placed his car in the custody of a tenant who put it in the leased salesroom in an effort to sell it. The premises had been leased for the purpose of a salesroom and a service station. The tenant defaulted in the payment of his rent and the defendant distrained for it upon the plaintiff's car. In such case, a judgment for the plaintiff will be affirmed.
Under the Act of March 21, 1772, 1 Sm. L. 370, chattels upon demised premises are prima facia liable to seizure for rent in arrears. Property, however, in a tenant's possession or on his premises, which has been placed there by those who deal with him or who employ him, where the necessities of trade require it is not subject to distress for rent due by the tenant.
Appeal No. 7, October T., 1929, by defendant from judgment of C.P., No. 1, Philadelphia County, September T., 1926, No. 8633, in the case of Charles Souders v. Samuel Willig, Agent, and Gerson Green, Constable.
Before PORTER, P.J., TREXLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Replevin for possession of an automobile. Before McDEVITT, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff and judgment thereon. Defendant appealed.
Errors assigned, among others, were the refusals of the defendant's motions for judgment non obstante veredicto and new trial.
Benjamin H. Levintow, and with him Samuel E. Kratzok, for appellant.
Earle Hepburn, for appellee.
Argued October 3, 1929.
This is an action of replevin. The parties agree that by his distraint for rent in arrear the landlord seized plaintiff's automobile, worth $750, on leased premises occupied by defendant's tenant. The jury found for plaintiff; defendant moved for a new trial and for judgment n.o.v., and both motions were refused. At the trial, after placing on the record their agreement of facts just stated, counsel for plaintiff said "so the only question is whether the automobile belonged to Souders [plaintiff] at the time or not;" to which counsel for defendant replied "the only question is whether the automobile was subject to levy for rent."
As the automobile was on the demised premises with nothing to give notice that it was not the tenant's, it was prima facie liable to seizure for rent in arrear: Act of March 21, 1772, 1 Sm. L. 370; an owner who would claim it, had the burden of proof in replevin: Esterly Machine Co. v. Spencer, 147 Pa. 466, 470. He offered evidence to support his right to possession; defendant offered none. The lease provided that the premises should "be used as automobile salesroom and service station and for no other purpose......" Plaintiff owned the automobile and purchased another, agreeing to transfer the car in suit as payment of $1,000 on account, unless he could sell it for more than $1,000; in which event he would also pay that sum in cash; to enable him to see whether he could sell it, he retained possession and control of it. To make the sale for his account, he placed it in the custody of defendant's tenant, engaged in the automobile selling business, and he put it in his automobile show window on the leased premises on North Broad Street, Philadelphia, for purposes of sale.
Replevin tries the right to possession: Ferguson v. Lauterstein, 160 Pa. 427. The only question raised by the appeal is whether property so placed for sale in the custody of a tenant in the regular course of his business, is within any exception saving it from distress for rent in arrear. There is no doubt about it. In considering the nature of the rule, Chief Justice GIBSON said in 1828 that he had "little reason to doubt, that the exceptions will, in the end, eat out the rule." Brown v. Sims, 17 S. R. 138. The growth and extent of these exceptions are referred to in the opinions filed in Wanamaker v. Carter, 22 Pa. Super. 625 and Korson v. Nixon, 45 Pa. Super. 343. The rule now applicable was thus stated in Karns v. McKinney, 74 Pa. 387, 390: "The principle covering these cases during the tenancy, except when the goods are in the custody of the law, is this: where the tenant, in the course of his business, is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises is not liable to distress for rent due thereon by the tenant."
The uncontradicted evidence showed that, as against the tenant, the right to possession was in the plaintiff and that the automobile was placed on the demised premises in the custody of the tenant for the purposes of the trade which the lease expressly authorized the tenant to conduct on the premises. The case is precisely within the rule.
Judgment affirmed.