Morris v. Halford
| Decision Date | 09 April 1945 |
| Citation | 352 Pa. 138,42 A.2d 411 |
| Parties | Morris et ux., Appellants, v. Halford (et al., Appellants) |
| Court | Pennsylvania Supreme Court |
Argued March 22, 1945
Appeals, Nos. 79, 80, 82 and 83, March T., 1945, from orders of C.P., Allegheny Co., April T., 1944 "A", No 2017, in case of James Morris et ux. v. Viola Halford et al. Judgment affirmed in appeal no. 79; orders reversed in appeals nos. 80, 82 and 83; reargument refused May 21, 1945.
Trespass. Before DITHRICH, J.
Compulsory nonsuit entered as to defendants, Halford and Buck. Verdict for plaintiff jointly against defendants, R.E. Kaplan Co. Howard C. Lewis and Virginia Lewis, in sum of $3,150. Motion by defendants for judgment n.o.v. refused but new trial granted. Plaintiffs, and defendants, R.E. Kaplan Co., Howard C. Lewis and Virginia Lewis, respectively, appealed.
No 79, judgment affirmed.
Nos. 80, 82 and 83, orders reversed and judgment here entered for the defendants severally.
Edward O. Spotts, Jr., for appellants, plaintiffs.
Clyde P. Bailey, with him Bailey & Critchfield, for appellants, Nos. 80, 82 and 83, appellees No. 79, R.E. Kaplan Co., Howard C. Lewis and Virginia Lewis, defendants.
Sam R. Keller, for appellee No. 79, Buck, defendant.
Edward J. McGinness, for appellee, Halford, defendant.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and JONES, JJ.
The plaintiffs, husband and wife, sued five defendants, averring that on or after April 20, 1943, they had
Compulsory nonsuits, which the court refused to take off, were entered as to who defendants, Viola Halford and William Buck. There was a verdict against the remaining defendants, Kaplan Company, Howard C. Lewis and Virginia Lewis, his wife. The court refused their motions for judgment n.o.v. and granted their motions for a new trial. We now have four appeals: one, by the plaintiffs from the refusal to take off the compulsory nonsuits, and separate appeals by each of the three defendants who assigned for error the refusal of their motions for judgment n.o.v.
The plaintiffs leased a four-room dwelling, 319 West Fifth Avenue, in McKeesport, from defendant Viola Halford, the lease being executed by her agent, William L. Buck, for the term of one month, beginning November 17, 1942, at $30.00 a month. The lease provided for a month-to-month continuation.
In March or April, 1943, the plaintiffs left McKeesport and went to Canton, Ohio, where Mr. Morris was employed, leaving their house at McKeesport locked and containing their furniture. The rent became in arrear more than a month. They returned on June 8th and found the house empty with a "for rent" sign on the front porch.
The averment of the conspiracy quoted above appears to charge two torts: (1) ouster from the premises, and (2) conversion of their personal property. As the plaintiffs were absent when the transactions of which they complain occurred, they relied largely on facts obtained by calling the defendants for cross-examination. To the extent that they were unable to contradict the evidence, so obtained, they are bound by the testimony elicited.
The evidence does not support the charges of conspiracy averred in the statement. While conspiracy may be proved by circumstantial evidence the evidence must be full, clear and satisfactory. The mere fact that several parties happened to exercise independent rights at or about the same time does not constitute an actionable conspiracy: cf. Rosenblum v. Rosenblum, 320 Pa. 103, 181 A. 583.
It will be convenient to deal first with Kaplan Company's appeal. That company had delivered furniture to the plaintiffs on a bailment lease on which the plaintiffs were in default. The contract provided "... and in case default be made of any of the payments as above agreed upon... the said bailee agree to forthwith deliver said property to said bailor or will permit the said bailor, or his agent, to enter into or upon any premises where any of such property may be and without let or hindrance take away the same, using such force as may be necessary in removal thereof."
Buck the real estate agent, had been advised by the Kaplan Company of the bailment to the tenants. During plaintiffs' absence, the premises were opened, by whom does not appear. Buck learned that the premises were open and that children were playing in and about them. He gave notice of that fact...
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