Wilhem v. Boyd

Mitchell, J., delivered the opinion of the Court. During the month of March, 1931, the Taylor Motor Company, the then owner of certain premises located in the town of Westminster, Maryland, and the appellee, who at that time held' a mortgage upon the same, leased the said premises to Lloyd A. Bowker for the term of ten years, accounting from the 1st day of April, 1931, at a monthly rental of $135, payable on the first day of each month, in advance. Thereafter, upon default, the appellee foreclosed the mortgage, subject to the terms of ¡the lease, and acquired the fee simple title to the property. Prior to the negotiations resulting in ¡the lease by Bowker, the appellant sold to him eight bowling alleys and equipment under a conditional sale contract; and, in contemplation of the purchase of said alleys and equip ⁸² ment, ithe lease agreement provided that, in consideration of the installation of the same upon the demised premises, the lessors would, for themselves, their personal representatives and assigns, release the chattels so installed or placed upon the premises from any lien or claim which might accrue for rent reserved in the lease; but it was expressly stipulated in said lease agreement that such waiver would not apply to rent due and in arrear at any time the appellant determined to remove the alleys and equipment from the premises, provided the lessors gave notice by mail to the appellant of any arrearage in said rent, within one month after any part of the same became due and demandable.

Both the lease agreement and .the conditional sale contract were duly recorded in ithe office of the clerk of the Circuit Court for Carroll County. It appears from the record that in September, 1931, four additional bowling alleys and equipment were sold, under like terms and conditions, and subject to the same rental waiver, by the appellant to Bowker; and that the total purchase price for the alleys and equipment was approximately the sum of $12,000. Although not promptly paid in accordance with the terms of the lease, the rental was collected by the appellee and her predecessor in title to December 31st, 1934; but meanwhile the lessee of the premises was in substantial default in compliance with the terms of the conditional sale contracts; and, as a result of this situation, the lessee, then owing approximately $6,000 under the conditional sale contracts, agreed to surrender all of the alleys and equipment to his vendor. The original agreement was reached by the vendor and vendee on December 28th, 1934, and was formally executed ad accepted by the parties thereto, as of said date, on ithe 16th day of January, 1935; and reads as follows: “Westminster, Md., Dec. 28, 1934. “To: Saunier-Wilhem Co., Pittsburgh, Pa. “Being unable to fulfill my contracted obligations to you and in consideration of your agreeing to release me from same, I hereby surrender ⁸³ to you my whole interest, if any, in the bowling alleys and/or equipment that you furnished me under deferred payment contracts on or about March, 1931, and September, 1931.

Consider this your authority to repossess and remove, or repossess and re-sell the same at your earliest convenience. “You will be responsible for the payment of the rent on the premises (at the rate of $135.00 per month) from Jan. 1st, 1935, to the day the alleys are removed from the building. “Lloyd A. Bowker. “G. E. Saunier. (Witness.) “Accepted Jan. 16th, 1935. “Saunier-Wilhem Co. “By P. F. Wilhem.” Subsequent to the aforegoing transaction, the appellant endeavored to sell the installed equipment to the appellee ; and he failing in these negotiations, the uncontradicted evidence in the record is that the appellant and the appellee co-operated in an endeavor to find a new lessee for the premises, and a purchaser of the equipment. These negotiations, however, were carried on over a period of more than six months; and they resulting in f ailure, the appellee, on July 16th, 1935, caused a distraint for seven months rent then due and in arrear, amounting to the sum of $945, to be made upon the first eight alleys and equipment purchased by Bowker, and appraised at the sum of $1,800. Two days later the appellant replevied the chattels distrained.

From a judgment in favor of the avowant-appellee for the full amount of the rent claimed and costs, this appeal is taken. By the amended avowry, the appellee sets forth the seizure of the goods and chattels distrained; the lease of the premises to Bowker; her subsequent acquisition of the fee simple title to the property at a time prior to which the rent for which the distress was made had accrued; her recognition, as landlord, by Bowker; the sale of the chattels by the appellant to the tenant, under the ⁸⁴ conditional sale contract, with full knowledge of the existence of the lease on the part of the vendor; their installation upon the diemised premises, upon which they remained until replevied; the repossession of said chattels, and the full acquisition of title thereto, on the 28th day of December, 1984, by the appellant; the agreement between Bowker and the appellant, herein-before set forth; knowledge of said agreement on the part of the avowant; that the goods and chattels continued to remain upon said premises while the lease was still in force, and at ¡the time of the distraint; and that at said time there was due and owing to the avowant rent which had accrued from the premises at the rate of $135 per month from the 1st day of January, 1935, to the 1st day of August, 1935, amounting to $945. Upon the overruling of a demurrer to the amended avowry, the appellant filed pleas in substance as follows: (1) That there was no rent in arrears. (2) That at the time of the distress there was no rent due and owing by the plaintiff to the avowant.

(3) That the avowant did not demise the premises to the plaintiff. (4) That the plaintiff did not hold and possess the premises under a demise from the avowant. (5) That the property dis-trained was not distrainable. (6) That the distress was too late.

(7) That the paper writing dated December 28th, 1934, set forth in the avowry, does not and cannot inure to the benefit of the avowant, or in any way enlarge effectuate, or establish a right of action or recovery by the avowant as against the plaintiff. (8, 9) The general issue pleas of never promised and never indebted as alleged. And by way of equitable defense: (10) That the tenancy of Bowker was terminated by mutual consent of all parties in interest on December 31st, 1934; that, during the time for which rent is claimed, the premises were untenanted and vacant; that the plaintiff never at any time became the tenant, never had possession of the alleys and equipment except by means of these proceedings, or the key to the premises; and that the avowant meanwhile held both actual and constructive possession ⁸⁵ of the premises and equipment. (11) That it was expressly agreed between avowant and plaintiff that from January 1st, 1935, no rent for the premises would be claimed, provided plaintiff would permit the equipment to remain in the premises for the purpose of enabling avowant to more readily re-rent the same; that the plaintiff did comply with said agreement, and permitted said equipment to so remain until it was evident that avowant could not re-rent the premises as contemplated, whereupon avow-ant, in violation of said agreement, refused to permit the plaintiff to remove the same from the premises.

Issue was joined on the first, fifth, and sixth of these pleas; and; by a replication filed to the last equitable plea, the avowant denied that any such agreement was made between the parties, and that she refused to permit the plaintiff to remove the equipment in violation of any such agreement. Demurrers filed to the remaining pleas were sustained. At the 'trial below the plaintiff reserved ten exceptions; eight of which related to rulings on evidence, and the two remaining to rulings on prayers. The exceptions in the first named class, briefly, are as follows: (a) Objection was made to- the introduction of the distraint papers by the avowant; and the court, we think, properly admitted the same, for the reason that they formed the very basis of the defendant’s avowry.

In 1 Poe’s Pl. & Pr. sec. 254, it is stated: “Avowry * * * answers to a declaration, and is so treated; and as it admits the property of the plaintiff in the goods, and justifies their seizure by way of distress for rent in arrear, the case turns upon the question whether the distress thus avowed was lawful, regular and valid, or not.” It would seem that no better evidence could have been adduced before the trial court as to the legality of the distraint than the introduction of the distraint papers. (b) After the avowant had testified that no rent for the premises had been paid to her from the 1st day of January, 1935, to some time in July, 1935, when the alleys were replevied, she was asked on cross-examination ⁸⁶ whether she knew the alleys were covered by a conditional sale contract. Objection to this question was sustained by the court, for the obvious reason that her knowledge of such a fact was immaterial. The apparent purpose of the question was to show that the alleys were not distrainable because of the existence of a conditional sale contract.

If, as a fact, the alleys were subject to such a contract, her knowledge or lack of knowledge in that respect would not affect the legal status of the property distrained. (c) Bowker, the tenant, produced as a witness for the avowant, testified, without objection, to the purchase of the alleys from Wilhem under a conditional sale contract ; that Ithe cost of the twelve alleys was about $12,000; and that Wilhem called upon him in December, 1934, for the purpose of effecting settlement. He was then asked, how much Wilhem at that time claimed as the balance due upon the purchase price of the alleys and other equipment. Objection to the question was overruled, and the witness answered: “A little over $6,000 balance.” The question was apparently asked for the purpose of establishing the consideration which passed between the vendor and vendee of the alleys when the settlement was made.

We think it was material, because the theory of the avow-ant’s case, as shown by the pleadings, was to the effect that the plaintiff repossessed the alleys by canceling the indebtedness. (d) As the fourth exception involved a question put to the witness Bowker, to which no responsive answer was given, and no motion to strike out the answer was made, we deem it unnecessary to discuss the same. (e) In the course of the examination of the plaintiff Wilhem, after he had testified that he had warehouse space in Pittsburg in which to store the alleys, and also knew of warehouse space in Westminster, and that Bowker had informed him that the monthly rental for the defendant’s premises was $135, he was asked for what amount he could have warehoused the alleys. Objection to the question was sustained; and this forms the basis of the sixth ⁸⁷ exception.

The question was asked for the purpose of showing the possibility of obtaining storage elsewhere for the alleys, during the period for which rent was claimed, at a lesser rate. As the witness had previously testified that he had told the avowant that he could not leave the alleys on the premises if he had to pay rent, and in view of his testimony as