Opinion
April 24, 1930.
July 10, 1930.
Landlord and tenant — Co-owners — Lease — Waiver of distraint by one co-owner — Rent — Distress — Abandonment of levy with consent of tenant and owner of goods — Second levy for same rent.
In an action of replevin to determine the ownership of certain restaurant fixtures, it appeared that the defendants' tenant obtained certain fixtures from the plaintiff under a bailment lease. Subsequently the tenant leased additional fixtures from the plaintiff and one of the defendants, styling himself as the owner and landlord of the premises, waived all of his rights to distrain the goods placed on the premises under the terms of the second bailment lease. The defendants' tenant defaulted in the payment of his rent for a period of six months and a distraint was made on the goods in the restaurant under a landlord's warrant. The distraint was later abandoned by the defendants at the suggestion of the plaintiff and with the consent of the tenant. Subsequently the defendants made a second distraint for seven months' rent which was inclusive of the six months in the first warrant. The plaintiff alleged that the second distraint could not be made for the rent covering the same period as the original distraint and that the defendants had waived their right to distraint. There was no evidence that the remaining co-owners of the building either authorized in advance or had knowledge of the signing of the waiver or that they ratified the action of the co-owner.
Held: (1) That the defendants were not precluded from distraining a second time for rent covering the same period for which a previous distraint had been made, and (2) that the one co-owner could not bind the other co-owners by waiving any of the terms of the lease without authority so to do.
The abandonment of a distress by a landlord raises a presumption of the satisfaction of the rent. This presumption, however, may be rebutted by showing that the writ has not been prosecuted by request of the tenant or the owner of the goods and a second distraint may be made for rent in arrears including that for which the first distraint was made.
Landlord and tenant — Co-owners — Lease — Authority of co-owner to waive right of distraint — Proof — Declaration of agent.
A waiver of the right to distrain signed by only one of joint owners of property does not bind the others in the absence of proof that they authorized or ratified the action of the one and proof of his own declarations cannot establish his authority as an agent. A joint owner cannot make a lease binding upon his co-owners, nor can he interfere With his co-owners from enforcing their contractual rights under a common lease nor can he bind his co-owners by an agreement concerning the use, control, or affecting the title of the owner.
Appeal No. 118, April T., 1930, by plaintiff from order of C.P., Beaver County, June T., 1928, No. 542, in the case of R. Bernstein, trading as The Restaurant Fixture Company, v. E.C. Colletris, alias E.C. Callistsis, trading as The Mayflower Lunch, Abraham Joseph, Sam Joseph, John Joseph, J.E. Tanner.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Petition to determine ownership of certain restaurant fixtures. Before READER, J.
The facts are stated in the opinion of the Superior Court.
Verdict for the plaintiff. The court subsequently on motion entered judgment non obstante veredicto for the defendants. Plaintiff appealed.
Error assigned, among others, was the order of the court.
Harold F. Reed, and with him Joseph Stadtfeld, Ralph E. Smith and Joseph Knox Stone, for appellant. — A landlord who levies a sufficient distress cannot abandon his proceedings and levy a second distress: Robinson v. White, 39 Pa. 255; King v. Blackmore, 72 Pa. 347.
Myron E. Rowley of Craig Rowley, for appellee. — One tenant in common, who has joined with his co-tenants in making a lease has no authority, as a matter of law to bind the others by a waiver of the right to distrain: McKinley v. Peters, 111 Pa. 283; Caveny v. Curtis, 257 Pa. 575.
Argued April 24, 1930.
This action in replevin was brought to determine the ownership of certain restaurant fixtures.
Colletris, one of the defendants, rented a room in a building, one-half of which was owned by Abraham Joseph, one-fourth by John Joseph, and one-fourth by Sam Joseph. He opened a restaurant in the leased premises and obtained certain fixtures from Bernstein, the plaintiff, under a bailment lease, dated May 19, 1927. On the following November 1, 1927, he leased additional equipment from the plaintiff.
On April 21, 1928, Colletris was six months in arrears in his rent and Abraham Joseph, acting for himself and his co-tenants, issued a landlord's warrant, and a distraint was made upon the goods in the restaurant. A few days thereafter, Colletris sent word to Bernstein that his store had been closed and Bernstein came to New Castle, and in the presence of Colletris informed Abraham Joseph that he claimed the goods, and said, "I will tell you, take off that levy because I do not want you to sell my fixtures, and I will go back to Pittsburgh, and I will try to get you a buyer so that you can save your rent and I can save mine, as otherwise I will leave the fixtures here until you get a buyer." This distraint was thereupon abandoned.
On May 3, 1928, as no buyer had appeared, the landlords caused another warrant to be issued and distraint was made the same day on all the goods in the restaurant, and thereupon a writ of replevin was issued by the plaintiff. Certain issues of fact involved were submitted to the jury and a verdict was rendered in favor of the plaintiff. Thereafter, judgment was entered n.o.v. for the defendants, which is the subject of the only assignment of error.
The first position taken by the appellant is that if the landlords distrained for six months' rent in arrears and abandoned the distress, they cannot make a second distraint for seven months' rent which was inclusive of the six months in the first warrant. Presumptively, the abandonment of a distress by a landlord is a satisfaction of the rent. This presumption, however, may be rebutted by showing that the writ has not been prosecuted by request of the tenant or the owner of the goods: Quinn v. Wallace, 6 Wharton 452 (463). It clearly appears that the action was not proceeded with owing to the admitted representations of the plaintiff, and the defendants, therefore, were not precluded from the subsequent distraint for the same rent. The tenant was present when the arrangement was made at the instance of the plaintiff not to pursue the writ. He made no objection then, nor does he now. This plaintiff is not, therefore, in a position to take advantage of a situation resulting from his own suggestion.
The appellant urges further that the defendant, Abraham Joseph, represented himself as the owner of the property, and waived the right to distrain; that after a distraint had actually been made and abandoned as the result of consultation with his joint owners, the defendants recognized his agency and are, therefore, bound by his action. Plaintiff testified that Abraham Joseph said, "I am the owner; whatever I do, I do all the business for them; there is nobody else to see." But there is no evidence that the co-owners either authorized in advance or had knowledge of the signing of the waiver, or that they ratified his action. Proof of his own declarations could not establish his authority as agent: Davidsville First Nat'l Bank v. St. John's Church, 296 Pa. 467; Zavodnick v. A. Rose Son, 297 Pa. 86.
At the bottom of the last lease, after the signatures of the parties thereto, the defendant, Abraham Joseph, signed a waiver in the following form: "I, for myself, my heirs or assigns, do hereby waive any and all rights to distrain the above mentioned goods for rent. Abraham Joseph, owner of the premises." The last lease contained, inter alia, the following: "Witnesseth, That the said lessor has this day rented the lessee the following goods: No. 3751 Vulcan hot top and all other restaurant equipment." It was contended that the words, "and all other restaurant equipment" were not in the lease when it was originally executed. There was a conflict of testimony on that point and the jury found in plaintiff's favor. We must, therefore, assume that they were embodied in the instrument at the time of its execution. The lower court held that those words referred to the goods only covered by the second bailment lease and, therefore, did not release the goods upon the premises covered by the first bailment lease. We agree with that conclusion.
The object of the contract, as expressed, was to cover the goods "this day rented" and mentioned therein. It, in no way, referred to the fixtures formerly leased, and they, apparently, were not within the contemplation of the parties. This view is given support by the rental of $831.70 which was to be paid. In the former lease there was still due, under the uncontradicted testimony, the sum of $1,250 at the time of the execution of the latter contract. It is quite evident, therefore, that the property intended to be embraced in the second lease did not include that mentioned in the earlier one; otherwise, the value would have been $2,081.70. It follows that there was no waiver by Abraham Joseph of his right to levy on the goods mentioned in the first bailment lease.
The appellee contends that the questions we have been discussing were not properly raised in the lower court, and, therefore, should not be considered in this appeal: Com. v. Dabbierio, 290 Pa. 174. They were not pleaded, nor referred to in the charge of the lower court, but we have concluded to dispose of them on the merits.
This brings us to the next proposition advanced by the appellant: Can one co-owner for a consideration inuring to the benefit of all the owners agree to forego one method of collecting the rent in the future so as to bind the other co-owners? This question is not controlling as we have concluded there was no waiver affecting the goods in the first lease. If we assumed the waiver related to the goods in that lease, it would be unavailing except as to Abraham Joseph. The waiver itself expressly states that Abraham Joseph acted for himself. There are no words used that would indicate that he endeavored to speak for others. Each owner may waive his right to so much of the rent as represents his portion of it: Decoursey v. Guarantee Trust Safe Deposit Co., 81 Pa. 217 (228); Trickett on Landlord and Tenant, 2d Edition, Section 141. Abraham Joseph, as a joint lessor, was without authority to execute a waiver in their behalf. A joint lessor may receive the entire rent and give a valid receipt therefor until notice by one of the owners that it must be paid to himself (Swint v. McCalmont, 184 Pa. 202; Gasner v. Pierce, 286 Pa. 529), but he cannot bind his co-owners by waiver of any of the terms of the lease without authority so to do: Wally v. Jones, 275 Pa. 250 (254); Penrose v. Coal Co., 289 Pa. 519 (523). A joint tenant cannot make a lease binding upon his co-tenants, nor can he interfere with his co-tenants from enforcing their contractual rights under a common lease (Willis-Winchester Co. v. Clay, 293 Pa. 513 (521); Gasner v. Pierce, supra); nor can he bind his co-tenants by an agreement concerning the use, control, or affecting the title of the owner: McKinley v. Peters, 111 Pa. 283; Caveny v. Curtis, 257 Pa. 575 (580); McCullough's Petition, 275 Pa. 456.
After a careful consideration of all the questions raised by the appellant, we find no reason to differ from the conclusion reached by the learned court below.
Judgment is affirmed at the cost of the appellant.