Wanamaker & Brown v. Carter , 22 Pa. Super. 625 ( 1903 )

Opinion by

Beaver, J.,

There is happily no difference in regard to the facts of this case. The plaintiff corporation was, as between it and its agent, Hitchcock, undoubtedly the owner of the goods dis-trained by the defendant. Those goods were essential to the business of Hitchcock. Without them, he could not move in the direction of active trade such as he carried on. They came necessarily into his hands in his dealings with the plaintiff. The defendant had reasonable notice, by his lease with Lewis & Hitchcock, which was signed by them as individuals, that they proposed to deal in goods of which they were not the owners, inasmuch as they described themselves in the body of the lease as “ managers.” 'The lease, therefore, must have been made upon their individual credit. The plaintiff corporation is not mentioned in it as being connected with the business in any way and the lessees do not hold themselves out as agents for the plaintiff.

Under these circumstances, were the goods of the plaintiff in Hitchcock’s possession, upon the premises owned by the defendant, subject to distress for rent overdue under the lease between Lewis & Hitchcock and the defendant ? Surely not.

Little can profitably be added to what is said by the opinion judge in the court below. The principles governing cases of this kind are clearly stated and the authorities fully collected. In none of them perhaps are the general principles which govern this case more concisely stated and the authorities better grouped than in Howe Sewing Machine Co. v. Sloan, 87 Pa. 438, in which Mr. Justice Sharswood says : “ The rule of the common law that the goods of a stranger on demised premises are subject to the distress of the landlord has yielded and must continue to give way to the growing necessities of trade and business. As Chief Justice Gibson has said : ‘ There is little" reason to doubt that the exceptions will in the end eat out the rule.’ It is not a subject upon which it would be wise to draw refined distinctions.' It was settled in Brown v. Sims, 17 S. & R. 138, that goods on storage were exempt, though the business of the tenant was not exclusively that of a warehouseman. Certainly a man may surely entrust his cattle to a farmer to agist who raises his own beasts for the drove or the market. Nor is there any reason why a similar principle should not be applied to the case of goods entrusted to an agent to be sold on commission. It is notoriously the usage for merchants (not holding themselves out as commission merchants) to receive and sell goods in that way. In the particular case before us it would seem reasonable to infer that the products of sewing machine companies, the machines themselves being known by the name of the manufacturers, are usually sold by these agents on commission. There was enough to put the landlord on inquiry, if notice was necessary. The broad principle which governs the case has been succinctly and happily expressed by our Brother Mercur in Karns v. McKinney, 74 Pa. 387. The principle,’ he says, ‘ 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 from the tenant Tinware Mfg. Co. v. Duff, 15 Pa. Superior Ct. 383.

The appellant claims to find a distinction in the cases of Page v. Middleton, 118 Pa. 546, and Myers v. Esery, 134 Pa. 177, in which leased furniture or leased goods in the possession of the tenant were held to be liable to distress for rent, but in both of these cases -the distinction is clearly made that the property so distrained for rent was not a necessity in the trade or business of the tenant and the cases are put upon that ground. In the former, Mr. Justice Clark said: “ But in no sense can it be said that either Quay or Officer was in the course of his business necessarily put in possession of this property. The delivery of the property was not a necessity in the trade or business in which either of them was engaged.” And so, in the latter: “ They were not necessarily on the premises for the purposes of trade as in the familiar instances of the goods of a guest at a hotel, or of a boarder in a boarding house, or of grain sent to a mill, cloth in a tailor shop, or goods of a principal in the hands of a factor.” It will thus be‘seen that these cases are not in any way contradictory of the numerous authorities which settle the general principle upon which the court below relied.

It requires no extension of the rule, so clearly stated in the cases summed up by Mr. Justice Sharswood in Machine Co. v. Sloan, supra, to determine the question involved in the case. If such extension were required, however, we have no hesitation in saying that the rule should be extended, so as to constitute another of the exceptions which Mr. Chief Justice Gibson so clearly foresaw would “ eat out the rule.” The system of business, under which Hitchcock was enabled to trade, gives employment to many persons who would otherwise be unable to carry on business. They could not, in the very nature of the case, secure goods on consignment or otherwise, if it were held that such goods were liable for their rent. Nor does the rule work any injustice to the landlord who in cases such as this can ascertain by a simple inquiry what interest his tenants have in the goods in and with which they trade. No further discussion is required.

Judgment affirmed.