Campbell etc. Co. v. Hickok , 140 Pa. 290 ( 1891 )

Opinion,

Mr. Justice Clark:

It is contended that the effect of the two contracts of the seventh and twenty-seventh of August, 1888, was to constitute Hickok a bailee for hire of the printing and job presses, rollers, etc. The “ leases ” were not for any definite period of time; the space left for the insertion of the number of months constituting the term was left a blank. Nor was the price per month for the hire fixed in terms at any definite sum. In form, the writing plainly imports a bailment of the property. The Campbell Printing-Press & Manufacturing Company are styled lessors, and Hickok a lessee; the presses, rollers, etc., were, in terms, “ let and hired ” to the defendant for a “ term,” at a specified gross sum, payable monthly, with a provision for a surrender or return of the property by the lessee to the lessors at the expiration of the term; the entire rent or hire was fixed at $3,000, payable in monthly instalments of $100 each, and it may be implied, perhaps, that the “ term ” was thirty months, for, at the end of that period, if the instalments were all promptly paid, the lessee had the option either to surrender or to purchase the property upon the payment of ten dollars, the payment of this sum being declared a condition precedent to the purchase. But the right of the lessor, during the term, to re-possess himself of the property upon the lessee’s default in payment of any of the instalments, did not rest in any general principle of the law of bailment, but was exercised by reason of the agreement to that effect.

The agreement as to this was as follows:

“ And it is further agreed by and between the parties to these presents, that, if default shall be made in the payment of the first or any other of the above-named instalments, then it shall be lawful for, and the lessor may, re-enter into possession of the personal property above described; may enter upon the premises of the lessee, and upon any other premises where the same may be found, and take away, re-possess, and enjoy the said personal property as though these presents had never been made, without any liability, accountability, or responsibility of the lessor to the lessee, or any other person or persons for so doing.”

The rights of the parties were fixed by the agreement, which was the law to them. The company had these two remedies for the enforcement of their rights: one, in affirmance of the contract by suit upon the notes as they matured; the other, in rescission of it by re-possessing themselves of the property, in which ease the company were to have and enjoy the said personal property as though the contract “ had never been made.” The notes were not given in satisfaction of the agreement, or of the hire of the property. This seems to be conceded by both parties. The agreement and the notes were part and parcel of one transaction : if the agreement “ had never been made,” the notes would not have been given; and when the agreement is rescinded, with like effect as if it “ had never been made,” the notes fall with it for want of consideration.

We are of the opinion that upon a fair and reasonable construction of this contract the learned court was right in refusing to enter judgment for want of an affidavit of defence.

The writ of error is dismissed at the cost of the plaintiff, but without prejudice to their right to trial by jury and a second writ of error after final judgment.