Goodwin v. Sharkey

1. A lease was for a store-room, for two years, for the yearly rent of $2000, with the stipulation that if the lessee should, ‘‘ at any time during the continuance of this lease, attempt to remove or manifest an intention to remove his goods and effects out of or off the premises, without having paid * * * in full for all the rent which shall become due during the term of this lease * * * the whole rent for the whole term shall be taken to be due * * * and the (lessor) may proceed * * * to distrain and collect the whole as if by the conditions of this lease the'whole rent was payable in advance.” Held, that by the lease it was not required that the attempt or intention to remove the goods should be fraudulent in order to authorize a distress. 2. The tenant becoming embarrassed sold and delivered goods to his creditors in payment of debts to them and made an assignment for benefit of creditors. Held, that the rent for the whole term had. become due and the landlord might distrain. 3. The tenant assented to the distress and within four months proceedings in bankruptcy were commenced against him. Held not to be in fraud of the Bankrupt Law. 4. Grant & McLane’s Appeal, 8 Wright 477, distinguished.

Error to the Court of Common Pleas of Grawford county: Of October and November Term 1875, No. 59. This was an action on the case, brought October 4th 1871, by Charles E. Goodman, assignee for the benefit of creditors of Moses Arnold, against Edward É. Sharkey and John II. Cortelyou. On the 4th of November 1872, the bankruptcy of Moses Arnold and the appointment of Charles E. Goodman and John McKellop as his assignees were suggested, and their names as such assignees entered of record as plaintiffs. On the 20th of February 1873, by leave of the court, the names of E. A. L. Roberts and John Doherty were added as defendants, and a summons in case, March 7th 1873, issued against them. The writ was returned “Summoned” March 17th. The declaration, originally was for unlawful distress; after the substitution, the plaintiff's declared, averring that they had the right to recover the goods distrained under the bankrupt laws. There was also a count in trover. The distress was under a lease, dated January 20th 1871, between Edward Sharkey and John H. Cortelyou of the first part, and Moses Arnold of the second part. The lease was for the first floor of a building in Titusville, owned by W. B. and E. A. L. Roberts, for two years and ten months for the yearly rent of $2000, payable in sums of $500 each, on the first days of April, July, October and January, and $375 on signing the lease, for rent up to April 1st 1871. The lease further provides as follows :— “ And the said party of the second part further covenants and agrees that if he shall at any time during the continuance of this lease attempt to remove or manifest an intention to remove his goods and effects out of or off from said premises without having paid and satisfied the parties of the first part in full for all rent which shall become due during the term of this lease, that then in such case the whole rent for the whole term of this lease shall be taken to be due and payable, and the said party of the first part may proceed by landlord’s warrant or other process, to distrain and collect the whole in the same manner as if by the conditions of this lease the whole rent was payable in advance.”- The case was tried January 20th 1875, before Lowrie, P. J. The plaintiffs gave the lease in evidence; also evidence of the payment by Arnold, on'the 3d of July 1871, of $500, the rent due on the 1st of July. Goodwin, the plaintiff (a paper being shown him), testified that it was the assignment delivered to him by Arnold July 14th 1871, and that he took possession on the same day and locked up the store with all the goods. Arnold testified that he had executed the paper. The plaintiffs then offered the assignment, together with evidence that appraisers were appointed under it by the court, appraisement made, and bond, with approved sureties, duly given, and that defendants had actual notice of the assignment before the distress was made, which was within thirty days after the assignment, and that by mistake the assignment was left for record with the prothonotary; also, that about October 1st, the firm of Roberts & Co., of which E. A. L. Roberts was a member, bought the remainder of the term from the assignee, and also notice by Sharkey & Cortelyou to Goodwin not to let the property.” The defendants objected to the offer, it was rejected by the court and a bill of exceptions sealed. The plaintiffs then gave in evidence the record of the proceeding in bankruptcy in the District Court of the United States for the Western district of Pennsylvania, by which M. Arnold was adjudged a bankrupt, and the plaintiffs, on the 12th of October 1872, appointed assignees in bankruptcy. John Doherty, constable of Titusville, testified that he executed a landlord’s warrant, issued by Sharkey & Cortelyou, on the goods of Arnold on the leased premises ; he levied and made return July 18th 1871; on that day he found the sheriff in possession ; on the 11th of August witness took possession ; he sold at the expiration of five days. Sale took place August 25th 1871; the goods brought about $2400; he “advertised six days after the five days.” M. D. L. Sharkey, who acted for Sharkey & Cortelyou, testified, that on Sunday night he saw that Arnold was packing goods; Arnold spoke of moving ; he moved Monday morning early ; he said he owed Sharkey & Cortelyou rent; Cortelyou got a warrant; Arnold said he had failed and had made an assignment to Goodwin ; Cortelyou got the money from the sale under the landlord’s warrant, $2300 or $2400 ; E. A. L. Roberts got the money after-wards by an arrangement with him; Roberts said he would keep it. Arnold was willing the landlord’s warrant should be issued. The warrant was taken out very quickly after Arnold told witness that he had failed. The house belonged to Roberts Brothers ; Sharkey & Cortelyou took a lease of it; they owed the Roberts considerable rent when the levy was made under the landlord’s warrant. Arnold testified, that the value of goods sold by constable was about $3300. Witness had sent the goods to different creditors, whom he specified; some of the goods he sent' back to the seller without having opened them; he was sending off the goods all summer; he sent them away openly; some of the goods which he had prepared to send to his creditors were stopped by the sheriff. There was evidence for the purpose of showing that Roberts was a partner in the'firm of Sharkey & Cortelyou; and that the conduct of Arnold and defendants was fraudulent, &c. The plaintiffs having closed their evidence, the court directed a nonsuit to be entered. The plaintiffs took a writ'of error and assigned for error: rejecting their offer of evidence and ordering a nonsuit.