Swartz v. Gottlieb-Bauern-Schmidt-Straus Brewing Co.

Boyd, C. J., delivered the opinion of the Court. The appellee sued the appellant in assumpsit, upon six common counts, and filed therewith an account which read: “To rent of said Manuel Swartz due and owing for use and occupation of premises Mo. 8 E. German Street, Baltimore City, paid by distraint on the goods and chattels of said GottliebBauernschmidt-Straus Brewing Company "x' * * $360.00.” The defendant filed the general issue pleas. The plaintiff asked leave to amend the declaration by striking out the six counts, to add an additional count, and to withdraw the account and affidavit filed with the original declaration. The Court granted leave to amend, and an amended declaration in trover was filed.

The defendant filed the general issue plea, a jury was sworn, issue joined, and the case proceeded to trial, which resulted in a verdict for the plaintiff for $389.93 damages. Prom the judgment entered on that verdict, this appeal was taken. The defendant objected to the amendment of the declaration, but as there was no exception taken to that action, it is ³⁹⁶ unnecessary to discuss it; although we might call attention to the fact that in Bonaparte v. Clagett, 78 Md. 87, this Court recognized the right of the plaintiff, who had sued in assumpsit upon the six common counts, to amend the form of action to trover, and decided that bringing the action in assumpsit did not constitute a ratification of the contract of sale which would prevent an action of trover for the value of the goods, where before judgment the plaintiff discovered that he had misconceived his remedy, and, upon an amendment allowed, changed the form of action to trover. The only exceptions in the record are to the granting of the plaintiff’s second prayer, as modified, and the Court’s own instruction, and to the rejection of the defendant’s first, second, third, fourth, sixth and seventh prayers, and overruling the special exception to the plaintiff’s second.

A somewhat full statement of the facts will be desirable in order that our conclusions on the rulings on the prayers may be properly understood. The defendant (appellant) rented from Mrs. O’Brien No. 8 East German Street, under two written leases. The first was for three years from November 1st, 1905, and included the property known as No. 8 E. German Street in the Phoenix Building, and the room under it, known as 7 Phoenix Building. The other was for three years from January 1st, 1905, and included rooms 3, 5, 7, and 9, which are in the basement of the Phoenix Building and are the rooms in which the property in question was dis-trained on.

Swartz assigned his lease to those basement rooms to William G. Bolgiano for the remainder of the term, but the landlady, while permitting the assignment, refused to accept Bolgiano as tenant, or to release Swartz from liability under his lease. On October 18, 1906, Swartz was in arrears for his rent to Mrs. O’Brien in the sum of $400.00, and on that day a distress was levied on property found on the premises. The property so found was sold by the bailiff for $361.55, and, after deducting the costs, $295.37 was paid to the landlady on account of rent due her. On February 17, 1906, Bolgiano had purchased from Swartz, for $500 ³⁹⁷ in cash, and $150 by note, the stock, license, furniture, ornaments, glassware and other utensils then in the saloon.

At the time the plaintiff owned certain other property which was on the premises. On March 7th, 1906, Bolgiano gave a chattel mortgage to the plaintiff on all the property on the premises which it did not own, to secure a loan of $350.00. The property on account of which this suit was brought included that which the plaintiff owned and that which was embraced in its mortgage from Bolgiano, and was the property levied on-and sold under the distress proceedings. Bolgiano owed Swartz between three and four hundred dollars rent, besides the $150 note, on October 13th or 14th (the witness was not certain as to the exact date), and he left the place before the distraint was levied.

He went to the brewery, said he was sick and not able to manage the business and offered the keys to Mr. Hamburger, who represented the plaintiff. Mr. Hamburger told him to give the keys to Swartz, and Bolgiano sent them" to him. Bolgiano testified he was a monthly tenant under Swartz. He paid Swartz the $350 which he had borrowed on the mortgage from the plaintiff.

Hamburger said he demanded the keys from Swartz on several occasions after they were sent to him, so they could get in and get the goods; that Swartz promised him the keys several times, but never gave them to him; that Swartz told him on several occasions he had a prospective buyer for the place, and the last time he said he wanted to hold the keys until the following morning, as he expected to have a customer then, but Hamburger said: “The next morning when I went there to see what was going on I found the constable in charge.” He said he could not state the exact date when Bolgiano offered him the keys, but it was about the middle of October; that he went to Swartz to get the keys, “I guess probably about a week or four days or something like that,” after he told Bolgiano to take the keys to Swartz. He said he told Swartz he wanted the keys to get the goods out; that he could not say exactly when he called on Swartz for the keys, but said: “Shortly after Mr. Bolgiano gave up the place ³⁹⁸ I went to see Mr. Swartz about getting tbe key of tbe place, and I made five or six requests of Mr. Swartz for that key between the time that Mr. Bolgiano closed the place up and the place was put in the hands of the bailiff.” The auctioneer identified a statement, dated the 25th day of October, 1906, which he had made of the sales to the plaintiff. A bookkeeper of the plaintiff testified that he knew of the distress proceeding by seeing a notice in the papers that the goods were to be sold at public auction; that he then went to Mr. Stewart’s office and asked if he would be allowed to take out the goods; that Mr. Stewart said he would have to see Mr. Swartz, and he made an appointment to see Mr. Stewart later, when Mr. Swartz was present. He said that was before the sale.

He told Swartz he wanted to remove the property belonging to the plaintiff and that covered by the chattel mortgage, and he replied Mr. Stewart had charge of the affair. He said: “He declined to allow me to act and to act himself and referred me to Mr. Stewart. This was all in Mr. Stewart’s office. That the property of the plaintiff was not gotten out before the sale,-but was sold.

Witness told Mr. Swartz at the same time that he thought the easiest means would be the best, and that if he would not permit us to.take our stuff out of there, there was only one thing for us to do, and that would be to bring action for the damage we sustained by the loss in having our property sold to pay the rent, and the property was sold.” The witness also testified that the plaintiff paid the auctioneer $244.50 for purchases made by it, and said there was a cash register mentioned in the mortgage. He asked Mr. Stewart at the sale why that was not offered, and he said he had given Mr. Swartz permission to take it from the premises, but he would speak to Swartz about it. Mr. Swartz called to see him about it, but he demanded it of him and he produced it; that the plaintiff still has it, awaiting the result of this case. The distress proceedings were taken out by Mr. Stewart, agent for the landlady.

The defendant denied any knowledge of the distress pro ³⁹⁹ ceedings until Ins wife saw a notice of the sale in the papers, and Mr. Stewart testified that it was not made in collusion with Swartz. There is no question in this State about the right of the landlord to distrain on the goods of a stranger on the premises, excepting such as are exempt by statute. That includes the right to distrain on the goods of a sub-tenant, and on those of the tenant or sub-tenant, although subject to a mortgage. But it is also well settled that a stranger whose goods are seized is entitled to redeem them and to be reimbursed by the lessee, or if they are sold he can recover the value from the lessee.

Edmunds v. Wallingford, 14 Q. B. Div. 814; Exall v. Partridge, 8 T. R. 308; O’Donnell v. Seybert, 13 S. & R. 54; 9 Am. and Eng. Enc. of Law, 639. “A stranger whose property is sold under a distress may buy it in and recover the amount paid in an action against the tenant.” Ibid., Note 2, citing Wells v. Porter, 7 Wendell (N. Y.), 119; Gear on Landlord and Tenant, 151. A great deal of the brief of the appellant is devoted to a discussion of the question whether there could be a recovery in an action of trover. There can be no doubt there was ample evidence to show that the plaintiff had the right of immediate possession at the time of the distress and sale.

Most of the property in controversy belonged to the plaintiff, and the rest was included in its mortgage. It is true that the note secured by the mortgage was payable on demand, but there was a provision in the mortgage that “if the mortgagee shall at any time feel insecure, or shall desire to take possession of the same, then the whole indebtedness shall at once become due and the said mortgagee, its successors and assigns, agents or attorneys, shall have the