Seanor v. McLaughlin

• Decision Date: 07 January 1895
• Docket Number: 45
• Citation: 165 Pa. 150,30 A. 717
• Parties: Seanor & Bierer, Appellants, v. Samuel McLaughlin
• Court: Pennsylvania Supreme Court

30 A. 717

165 Pa. 150

Seanor & Bierer, Appellants, v. Samuel McLaughlin

No. 45

Supreme Court of Pennsylvania

January 7, 1895

Argued October 2, 1894

Appeal, No. 45, Oct. T., 1894, by plaintiffs, from judgment of C.P. Westmoreland Co., Feb. T., 1890, No. 414, on verdict for defendant. Affirmed.

Issue to determine validity of judgment. Before DOTY, P.J.

At the trial it appeared that judgment had been entered upon a bond given by defendant to plaintiffs as collateral security for the payment of certain installments of hire of a threshing machine and traction engine. The lease under which the machines were hired provided as follows:

"Know all men by these presents: That I, Samuel McLaughlin, of Salem borough, Westmoreland county, Penn'a, have leased and received of and from Harry F. Seanor and Daniel Bierer partners as Seanor & Bierer, of Latrobe, said county, the following agricultural implements or machines, to wit: One Springfield traction engine No. 1499 and one J.I. Case Separator, No. 11421, of the value of seventeen hundred dollars, which I am to use with care and keep in good order and

"In consideration thereof, I have covenanted and agreed, and hereby do covenant and agree, to hire said machines from the said Seanor & Bierer, from the date hereof until the first day of January, 1892, and to pay during the said term for the use thereof the sum of seventeen hundred dollars ($1700), as follows, to wit: On the execution and delivery hereof to deliver to the said Seanor & Bierer one old engine of the value of $750; $316.67 on the first day of January, 1890; $316.67 on the first day of January, 1891, and a like sum of $316.67 on the first day of January, 1892, with interest payable annually. And as collateral, to secure the payment of said rentals, I have executed and delivered to said Seanor & Bierer my judgment bond of even date herewith payable as aforesaid. If default be made in said payments or any of them, or if I shall sell or offer for sale, remove or attempt to remove said machines or either of them from said county of Westmoreland without the written consent of said Seanor & Bierer, then and in that case I hereby covenant and agree to return said machines to said Seanor & Bierer, and that they, the said Seanor & Bierer, or their agent, may resume actual possession of the same; and I hereby further authorize and empower the said Seanor & Bierer, their agent or assigns, to enter the premises wherever said machines may be and take and carry the same away, waiving and releasing any action for trespass or damages by reason thereof and any right of resistance thereto. It being understood and agreed that I may at any time within said term purchase said machines by paying the above valuation therefor and that then and in such case only the rentals theretofore paid shall be deducted therefrom and allowed as a credit upon said valuation."

A judgment bond was given as collateral to the rent.

Plaintiff paid the sum of $750, but was unable to pay the first annual installment. Plaintiffs thereupon resumed possession of the machines, but refused to surrender the bond to defendant. Plaintiffs subsequently entered judgment upon the warrant contained in the bond. The court opened this judgment, and the present issue was framed.

The court charged in part as follows:

"[The defence is that there was a rescission of the contract. It is contended that the plaintiffs could do one of two things. They could either enforce the contract, that is, demand the payment of the rental as it matured, or they could rescind the contract; that is, they could take the machines back, in accordance with this particular stipulation. The plaintiffs elected to rescind, in the way that is provided for in the article of agreement; they elected to take back the machines on the 2d of January, 1890. Leases very similar to this lease, and so similar that we are unable to discriminate between them at this time, have been construed more than once by the higher court of our state, and by such construction this court is bound. We must carry out as far as we can the law as it is laid down by the Supreme Court of the state. And it is held under such circumstances, as we understand it, that where there is a stipulation of this kind, even though the payments, according to the terms of the lease, are not due at the time, but where the party elects to rescind in this way, by taking back the machinery, the whole contract falls. This bond that we have spoken of, is part and parcel of this agreement. They are to stand or fall together, and the plaintiffs in this case could have taken either alternative. They could have enforced the payments according to the terms of the contract, or repossessed themselves of the machinery. But they cannot do both. They could not recover the payment maturing on the first of January, 1890, and also take possession of the machine.]

"[Following this line of authority, we feel it incumbent on us to say to you as matter of law that, it being undisputed here that there was a rescission, there is nothing for the jury to pass upon; that the defendant was not liable under the terms of that bond to pay any more rental after that time. The whole amount was $1,700, according to the plain terms of this agreement. This would be an average of $62.50, or thereabouts, per month, for a period of twenty-seven months.

"The defendant further contends that there was no rent in arrears, as we understand his contention, at this time. That is, the rental that was paid by the exchange of the traction engine on Sept. 2, 1889, covered the period fully up to the first of January, 1890, and that this second installment was not to pay for the period during which defendant had held possession of these machines, but it was rent in advance, for the next period that ensued after the first of January, 1890; and the position of the defence is, that the plaintiffs' resuming possession of the property before the termination of that particular term for which the contract provided, forfeited the right to recover the rental. Seven hundred and fifty dollars were paid, according to the agreement, on the second of September, 1889. No other payment was due until the first of January, 1890. If this payment were made, the plaintiffs would receive the sum of $750, the value of the old engine, and the sum of $316.67, or $1,066.67. And this for the use of the machines for the period of three months, and which would leave only about $683 for their use for the remaining two years.]

"[It is not necessary now to decide the particular point whether the installment due January 1, 1890, was for rent from the 2d of September until the 1st of January, or whether it was rent in advance, but the contention of the defendant is that the plaintiffs had no right to demand the rent due the 1st of January, 1890, and then take possession of the property.

"On the other branch of the case we deem it our duty to say to you that plaintiffs cannot recover; that they have rescinded their contract, and the contract being rescinded, the bond falls also; that they have no right of action and it is your plain duty to render a verdict for the defendant.]" [4]

Verdict and judgment for defendant. Plaintiffs appealed.

Errors assigned were (1) answers to five points; (2-4) above instructions; quoting points, answers and instructions.

V. E. Williams, A. M. Sloan and W. A. Griffith with him, for appellants, cited: 1 Wait's Actions and Defences, 84; Shafer v. Senseman, 125 Pa. 310; Duffield v. Hue, 129 Pa. 94; White v. Smith, 33 Pa. 186; Burkhard v. Ins. Co., 102 Pa. 262; School Dist. v. Derr, 115 Pa. 439; Leatherman v. Oliver, 151 Pa. 646; Tiley v. Moyers, 43 Pa. 404; Kessler v. McConachy, 1 Rawle, 435; Gallagher's Est., 76 Pa. 306; Greider's Ap., 5 Pa. 422; Milling v. Becker, 96 Pa. 182; Galey v. Kellerman, 123 Pa. 491; Wills v. Gas Co., 130 Pa. 222; Ogden v. Hatry, 145 Pa. 640; Leatherman v. Oliver, 151 Pa. 646; Hamilton v. Billington, 163 Pa. 76.

James M. Peoples, D. S. Atkinson with him, for appellee, cited: Campbell v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The plaintiffs were...