Rohrer v. Cunningham

20 A. 872, 138 Pa. 162, 1890 Pa. LEXIS 1252

• Court: Supreme Court of Pennsylvania
• Decided: November 3, 1890
• Docket: No. 88
• Status: Published

Opinion

Pee Cueiam:

The first section of the act of May 13, 1876, P. L. 171, provides that “ all pianos, melodeons and organs, leased or hired by any person or persons residing within this commonwealth, shall be exempt from levy and sale on execution or distress for rent due by such person or persons so leasing or hiring any such piano or pianos, melodeon or melodeons, organ or organs, in addition to any articles or money now exempt by law: Provided, that the owner or owners of any such piano, melodeon, or organ, or his or their agent, or the person or persons so leasing or hiring the same, shah give notice to the landlord or his agent that the instrument is leased or hired.”

In McGeary v. Mellor, 87 Pa. 461, it was held that the notice referred to in the proviso of the act must be given to the landlord when the leased instrument is placed upon the premises, or at least before the landlord’s right to distrain has accrued. The organ, which is the subject of this controversy, at one time belonged to William Yaughn, who was a tenant of .the defendant Klingensmith. Yaughn, being in arrears for rent, sold the organ to the plaintiff for the sum of fifty dollars. Vaughn then called upon the defendant, and obtained from him in writing a release of all claim upon the organ. The sale from Vaughn to the plaintiff, Rohrer, was also mentioned in the release. At the same time Vaughn paid the defendant forty dollars on account of the rent, and informed him that Rohrer had leased the organ to his (Vaughn’s) daughter, Clara. Upon this state of facts, the defendant released the organ, but subsequently seized it upon a distress for rent, and it was sold by the constable. This action was brought before a justice of the peace by the plaintiff, to recover damages for an illegal seizure and sale of the organ. Upon an appeal to the Common Pleas, a verdict and judgment were rendered for the plaintiff.

The principal defence here and in the court below was that notice was not given to defendant as required by the proviso to the act of 1876. The learned judge below left the question of notice fairly to the jury, and they have found in favor of the plaintiff. . It is difficult to see how they could have done otherwise. It could not have been successfully denied that the defendant had actual notice of the transfer of the organ to plaintiff and the lease to his daughter. It is the merest technicality to say that he was not Rohrer’s agent, and had no authority to give the notice. The jury, looking at the entire transaction, would have little difficulty in finding an implied authority ; and, in view of the release, we are not prepared to say they committed any error. The learned court certainly did not.

Judgment affirmed.