Timmes v. Metz , 156 Pa. 384 ( 1893 )

Opinion by

Mr. Justice Thompson,

The fund arising from the sale under the execution in this case was claimed by the plaintiff in the writ, the landlord whose tenant defendant was, and by several persons who were employed by him. Defendant was engaged in the hotel business, and for the hotel paid rent at the rate of $125 per month, but had paid no rent from May 1,1891. There was actually due at the time of the levy $1,168.88. The sale under the execution was completed February 24,1892, and at the expiration of that month there would have been due to the landlord rent to the amount of $1,250. He gave notice that this sum was the amount of rent in arrear and due him. As the month had not expired this sum was $54.17 in excess of that actually due. His right to payment out of the fund to an amount not exceeding one year’s rent is clearly fixed by the act of June 16, 1836, and the fact that by mistake or accident he gave notice of a small sum in excess of the amount then due should not destroy this right. The act requires no specific form of notice. It provides that the goods and chattels shall be liable for the payment of any sum of money due at the time of taking such goods in execution, and makes it the duty of the officer to pay, out of the proceeds of the sale, the rent due, limiting the amount to one year’s rent. As the landlord is entitled to be paid from the proceeds of the sale it is manifestly proper that he should give notice of his claim to the officer, but such notice is not necessarily required to contain every element of precision.

The appellant himself recognizes the sufficient accuracy of this notice of the landlord. In bis notice to him he says, “ You notified the said sheriff in writing that the said defendant was indebted to you in the sum of $1,250 for rent accrued and unpaid by said defendant as tenant under you within one year immediately preceding said levy.” This knowledge of the extent, nature and character of the landlord’s claim, as derived by the appellant himself from the landlord’s notice, is a negation of his claim of its insufficiency. In this notice of appellant to the landlord he says, “that there was at and before the levy and still is upon the premises certain goods liable to distress, that they are claimed by certain persons, that unless he proceeds to distrain he will hold liable to the value, and that it shall be deducted from the amount claimed by him out of the proceeds of the sale.” As the landlord disregarded this notice it was contended that the value of these goods should be deducted from his claim and the court below was guilty of error in not doing so. This notice was served twelve days after the sale and sufficient money had at that time been realized from it to pay the rent due. The landlord was entitled to be paid from such proceeds and was under no obligation to proceed to distrain because requested by appellant, the execution creditor. In his argument he admits that there is no case to be found which warrants this claim, and seeks refuge, however, in the analogy, where one creditor has two funds and another has one, the former is required to exhaust the one upon which the latter has no claim; but this analogy is not well founded when it is considered that, in this case, the one fund amply secured him, and there was no reason or necessity for seeking another. When the levy is made upon personal property and the sheriff has notice of a claim for rent, he has no right to stay the writ without the consent of the landlord, because his right to distrain is interfered with by the levy : Borlin v. Commonwealth, 110 Pa. 454. With his rent thus secured and to be paid out of the proceeds of the sale, it would be anomalous to deprive him of it because he declined to do an unnecessary act at the request of an execution creditor. The position of the appellant has neither equity, authority, nor analogy to support it.

While this notice of the landlord was thus sufficient, such was also the case with those of the claimants for labor and services. They set forth that all the goods, chattels, rights and credits of the defendant were under execution, the nature of the labor and services to defendant in his business of hotel keeping, that the time when the same was done or rendered was within six months, that the amount of each was not in excess of $200, and that the respective amounts were liens upon the property levied upon, made so by the acts of assembly relating to wages. The act of 1872 made its provisions applicable to miners, mechanics, laborers, etc., while the act of 1883 amendatory of it, increased to a very large extent the class to be protected, and included clerks and servants about hotels. After ■providing that the money due for labor and services shall be preferred and first paid out of the proceeds, it is enacted that it shall be lawful for them before the sale to give to the officer executing the writ notice in writing of their claim or claims, and the amounts of the same. The limit of the period of work to be paid for is six months and the amount $200. The purpose of these acts is to protect from loss, in case financial disaster occurs to employers, a large class of persons whose dependence upon their earnings for their support and maintenance renders their lpss even for a short period of time a matter of serious import. With the struggle for livelihood intensified by the progressive movements of civilized life, such legislation necessarily has its foundation in a humanity that would aid the weak, and consequently should not be restricted in its operation by requiring the highest degree of precision in the notice to be given to secure its benefits. These notices therefore should be such as would indicate to the officer and those interested the sum due before sale, the limit of time as to work done, the business defined by the acts, and the property subject to the lien: Allison v. Johnson, 92 Pa. 316 ; Adamson’s Ap., 110 Pa. 462. As the notice in this case set forfh a levy upon all the goods and chattels of defendant, his business of hotel keeping, the char* acter of the labor and services, the times when they were done or rendered, and their lien upon the propertjr in execution under the acts of assembly, it is manifest that they are sufficiently particular, and contain all the requisites of proper notices.

The further objection to the claim of Ellen Weaver, based upon the ground that there is no evidence of contract, cannot be sustained. Both she and defendant Metz testified that a contract was made for her employment, that she was to be paid what her services were worth, and that they were worth $3.50 per week. The auditor finds that she was employed by defendant, and that her services were worth that amount per week. The act of assembly in its provision making the preference provides “ that all moneys that may be due or may hereafter become due for labor or services rendered (by persons named), whether at so much per diem or otherwise,” clearly was intended to reach all classes of employment. In this case, the claimant was employed under an express promise to pay, and having performed her work and earned her wages she is entitled to have them paid out of the fund. Moyer’s Ap., 112 Pa. 290; Ranninger’s Ap., 118 Pa. 20.

As the assignments of error are not sustained, the decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellant.