Stopper v. Kantner

29 Pa. Super. 48, 1905 Pa. Super. LEXIS 264

Opinion

Opinion' by

Rice, P. J.,

The want of intention to convert into realty chattels annexed ’to it is imputed to the tenant who attaches to the demised premises fixtures for the use of his business, the law presuming in favor of trade that he means to remove them before the end of his term; and it is only on leaving without removing them that the intention to make a gift of them to the landlord is imputed to him: Lemar v. Miles, 4 Watts, 330; Hill v. Sewald, 53 Pa. 271. Whatever may be the reason for the rule which requires the tenant to remove his trade fixtures during the term, there is no ground for its application where he attempts to remove in due time, but is forcibly prevented from so doing by the landlord who wrongfully takes possession of the demised premises: Ewell on Fixtures, 141. It was held in such a case, prior to the act abolishing the distinctions in the form of action, that the tenant could maintain trover for the chattels thus converted. “ The instant the defendant took and appropriated the plaintiff’s property they became entitled to redress .by proper action at law. His wrongful possession is not a bar to the action of trover. If he entered in violation of his contract and unjustly converted the chattels, he is liable as a stranger would be for entering and taking the plaintiffs’ goods:” Watts v. Lehman, 107 Pa. 106. In a very recent case it was held where a tenant having trade fixtures on the premises, secures a new lease in the nature of an extension of the old lease, and the new lease contains no reservation of the right to remove the fixtures, the tenant may keep the fixtures on the premises without giving the landlord the right to restrain their removal at or before the expiration of the second lease. In such a case the law will not require the tenant to do the vain thing of removing the fixtures one day and moving them back the next: Radey v. McCurdy, 209 . It is thus seen — and other illustrations might be given — that the general rule that the right to remove the fixtures must be exercised during the term, unless there is a specific agreement otherwise, is not without exceptions. But the case most closely analogous to the present is Donnelly v. Frick & Lindsay Co., 207 Pa. 597. In an action by the landlord against a former tenant for an alleged wrongful removal of trade fixtures after the expiration of the term, where there was evidence tending to show that the agent of -the landlord prior to the expiration of the term gave the tenant permission to keep the property on the premises until he could obtain possession of another building which he expected to occupy, it was held to be error to charge that the tenant had no right to remove the fixtures during the period of holding over unless there was a definite and determinate agreement settled between the parties. After adverting to the general rule upon the subject, Justice Brown said: “If, during the term, no intention can be imputed to the tenant to make a gift to his landlord of fixtures, which he has attached to the land for the use of his business, and he has a right to remove them during the tenancy, the same rule ought to, and does, apply when, by permission of the landlord, even without a formal renewal or extension of the lease, he continues to remain on the premises for a definite or indefinite term. During such period, in the absence of any agreement to the contrary, his intention as to his fixtures remains unchanged, and his right to remove them is unaffected by his holding over.” It cannot be said that the decision was put upon the ground that there was an implied renewal of the lease, as in Davis v. Moss, 38 Pa. 346, for in the same connection the court said : “ The tenant may have been mistaken as to its right to remain; but, if it was misled into doing so by the conduct or language of the agent of the appellee, the latter cannot now ask that the fixtures be forfeited to him.” In the present case the term was for one year from April 1. On March 29, preceding the end of the term the landlord delivered to the tenant a paper dated March 28, giving him permission to remove certain fixtures and other articles, specifying them, on or before April 3,1902. On Saturday, March 29, and Monday, March 31, the tenant was engaged in loosening the fixtures and preparing them for removal, but at. midnight of the latter day the landlord’s watchman, who had been present overlooking the work for his employer, took possession and changed the locks, and when the tenant’s employee appeared on the following morning to complete the work of removal he was unable to unlock the door, and was told by the person in charge that he could take nothing out of the premises. Thereupon the plaintiff went to the defendant and demanded his property, but was told, so he testifies, that he Avould not be permitted to take anything more out of the premises. The landlord could not in this manner acquire title to the tenant’s trade fixtures which he had induced the latter to believe he would be permitted to remove on or before April 3. We do not say that the landlord had no right to revoke the permission and restore both parties to the legal position they would have occupied if it had never been granted; but he could not withhold the revocation until the stroke of midnight of March 31, and from that time forcibly exclude the tenant from the premises, and still hope to maintain the proposition that the tenant’s omission to remove the specified fixtures before that hour as effectually barred his right to remove them at all, as well as his right of property in them, as if it had not been given. As has been said of the right to enforce forfeitures generally, so it may be said here, “ there must be no cast of management or trickery to entrap ” the tenant into what is equivalent to a forfeiture of trade fixtures which he never intended to dedicate as a permanent accession to the freehold. The fourth and sixth assignments are overruled.

But it is argued that the plaintiff had forfeited the privilege by his breach of what is claimed to be a condition upon which the permission was granted, namely, that the removal be made “ without injury to the freehold, the fixtures or other personal property ” belonging to the defendant. We are not prepared to concede that this was a condition subsequent and that for the slighest and most trivial injury to the freehold not negligently committed, as for example splintering a floor board in loosening the fixtures, a forfeiture could be declared. But we need not go into a discussion of that question. A careful reading of the testimony adduced by the defendant has failed to convince us that a verdict in his favor upon that ground could be sustained. When he was called upon to specify the injuries of winch he complained, he said: “ Oh well, the amount that had been done just at that time didn’t amount to such a very great deal. As I said here before, there was some stuff, lath, smashed up and broken up, and there was a little damage done to some steps that went upstairs — not a great deal. Some window lights broken — one sash was broken in couple of places.” This testimony does not connect the defendant with the injuries complained of, and the other testimony fails to show that the windows were broken by the plaintiff, or with his knowledge or consent, or by his employee acting within the scope of his employment. The above quoted clause of the paper relates to unnecessary injuries done in the process of removing the fixtures, not to the willful or wanton acts, entirely disconnected therewith, committed by a third person without the knowledge or consent of the plaintiff. The evidence as to the damage to the steps leading to the second story is indefinite as to the time when or person by whom it was done, and at the worst the damage was insignificant. The witness being asked how many boards were broken answered : “ Two — one partly and the other one just had a clip.” How or when it was done does not appear. We will not go further into details. Eliminating from the case those injuries to the freehold which are not traced to the acts for which the plaintiff was responsible, and the injuries not shown to have been done in the process of removing the fixtures after the written permission was delivered to the plaintiff, and the injuries which upon cross-examination turned out to be to his own fixture's, there remains no sufficient basis in the evidence for a finding that the plaintiff forfeited his granted privilege to remove the fixtures on or before April 8. There was therefore no reversible error in the instructions complained of in the eighth, ninth and tenth assignments. These assignments are overruled.

The paper under which the plaintiff claimed the right to remove his fixtures after the expiration of the term enumerated certain fixtures which the defendant claimed belonged to him and w'hich the plaintiff was notified must not be removed. It then proceeds: “You are further notified that any property or fixtures which you own and desire to remove from the premises, must be removed from the premises on or before April 8,1903, and that it must be removed without in any manner damaging the freehold or other personal property or fixtures to which it may be attached. The property on said premises which belongs to you, is the following: ” Here follows a specification in detail of the different articles which the defendant admitted belonged to the plaintiff. The paper concludes: “ All of the property that belongs to you you may remove on or before April 3, 1902, provided 'such removal may be made without injury to the freehold, the fixtures or other personal property belonging to me.” The construction of this paper when read as a whole is free from difficulty. It did not extend the term, nor did it extend the period within which the plaintiff could remove all the fixtures, nor did it debar the defendant from taking possession at the end of the term subject to the right of the plaintiff to re-enter for the single purpose of exercising the special privilege granted. It is a mistake to construe the last quoted clause as nullifying all that precedes. Of course the defendant’s assertion that certain of the fixtures belonged to him amounted to nothing as evidence of the fact, but as the permission he was granting was purely voluntary he had a right to exclude from it, whether with reason or without reason, the fixtures he claimed as his property. This he did in express terms, specifying the articles. It was impossible for the plaintiff to be misled by this paper into the belief that his possession would be extended for three days for anj'' purpose except for the single purpose of removing the fixtures not excluded from the written' permission. He had unequivocal notice that as to these excepted articles he had no right of removal except such as law gave him. If he omitted to exercise it through mistake as to his right, it was his own mistake and the defendant was in no wise responsible for it. We are unable to find any stable ground, either legal or equitable, upon which to rest a decision that the general rule, that the tenant shall remove during his term the fixtures he proposes to claim the right to remove at all, does not apply to these excepted articles. We conclude, therefore, that the defendant’s third point — seventh assignment — ought to have been affirmed, and the instructions complained of in the third and fifth assignments ought to have been qualified accordingly. The calculation presented by the appellant’s coun sel in their paper-boolc shows quite satisfactorily that the verdict was $123.01 larger than it would have been if the defendant’s third point had been affirmed and the recovery restricted as therein requested. Unless the plaintiff is willing to remit this amount from the judgment the case must go back for a retrial.

The remaining question to be considered is raised by the first and second assignments of error. Evidence that the plaintiff had an oral agreement with a third person to go into partnership and to use the fixtures in the business, that under the agreement this person was to pay the plaintiff a certain price for a half interest in them, and that in consequence of the conversion the agreement fell through, would not be competent for the purpose of making the price which this third person agreed to pay a basis for the computation of the plaintiff’s damages. Nor was the evidence quoted in these assignments offered or admitted for that purpose. The only possible relevancy such evidence would have, under the pleadings, even though accompanied by evidence that there was a very limited market for such articles in that vicinity, would be to explain the plaintiff’s refusal of the defendant’s offer to permit him to remove the goods, made two weeks after the conversion. But as the case was presented, such explanatory evidence was not required to enable the plaintiff to recover damages equal to the market value of the chattels converted, until the defendant gave some evidence that they had not deteriorated in the meantime. No such evidence was introduced by the defendant, therefore the evidence offered by the plaintiff in rebuttal might well have been rejected as irrelevant. But as the evidence was offered and admitted for the single purpose above stated, and as the court did not permit it to be used for any other purpose, and as the amount of the verdict clearly shows that the jury were not misled and did not accept- it as the basis upon which they computed the plaintiff’s damages, we are of opinion that the admission of the evidence was not prejudicial error, and therefore is not cause for reversal.

And now October 9, 1905, it is ordered, that if within twenty days from this date the plaintiff shall file in the office of the prothonotary of this court a paper remitting from the amount of the judgment the sum of $123.01 the prothonotary shall mark the judgment affirmed for the reduced amount; otherwise, that he shall state of record that the judgment is reversed and a venire facias de novo awarded.