Scull v. Reiley

I agree with the majority opinion that "where an agreement is drawn in the alternative and gives the lessor, or seller under a conditional sales contract, the right either to repossess the property upon default, or to collect the rental, or the unpaid purchase price, such lessor, or seller, can either collect the amount due under the terms of the agreement in affirmance thereof, or rescind the contract and repossess the property, but he cannot do both" (citing cases). I also agree, as stated by the majority opinion: "It is equally well established . . . that if it is plainly expressed in the contract . . . or is a necessary implication from its terms that these remedies are cumulative, then the lessor, or seller under a conditional sales contract, can repossess the property, as well as collect the rental, or unpaid purchase price." In the instant case the rentals are "cumulative" only to the extent set forth inparagraph 5 of the agreement between the parties.

I do not agree with the majority opinion that paragraph five gives the lessors the right to collect not only "the rental due at the time of repossession, i. e., the two monthly instalments of $625 each" but also "the interest on the sum of $25,000 at five per centum per annum from May 23, 1929, to June 17, 1936, the date of execution of the third contract. . . ." There is absolutely nothing in paragraph five which gives the lessors the right to collect any interest on the $25,000 purchase price. *Page 536

In the agreement between the parties dated June 17, 1936, as set forth in plaintiffs' statement of claim, it is provided, inter alia: "That the Sellers have . . . let unto the Buyer, the newspaper plant and job printing business formerly conducted by the Sellers, in the Borough of Somerset, . . . all of which are particularly enumerated in the schedule hereto annexed and made a part hereof . . . for the term of three years from the date hereof, at the rent of $7,500 for the first and second years, payable $625.00 per month in advance for the first ten months of said year, and $1,250.00 per month for two months of said year; together with interest at the rate of five (5) per cent. per annum from May 23, 1929." In other words, the interest has exactly the same status under this contract as the purchase price of $25,000.00 and no more. The majority opinion holds that the principal sum of $25,000.00 provided for in the agreement cannot be collected by the sellers. With this I agree and I submit that neither can the interest be collected.

The majority opinion takes the position that in addition to the two monthly installments due, the sellers can collect the interest on the sum of $25,000 at 5% per annum. As paragraph five, which, as the majority opinion states, "is the law as to" the parties, is completely silent as to any interest payments, I find no warrant for the holding that the sellers can collect interest on the principal which, it is conceded, cannot be collected. The sellers having repossessed the property and determined the agreement, their rights are those given them in paragraph five, which paragraph in unequivocal language declares that "upon any determination of this agreement, the Sellers shall have the right [1] to collect rental, at the rate hereinbefore agreed upon, up to the time of repossessing themselves of the property and [2] to recover damages for any injury which may have been done to it, and [3] as well as for any expenses or costs incurred by them in recovering *Page 537 possession thereof." No other items whatsoever are mentioned in paragraph five. Since no other items than "rental", "damages" and "expenses" are mentioned in that paragraph, the sellers can claim no rights as to other items. This is so obvious that it is not necessary to invoke the maxim "expressio unius est exclusio alterius", but this is a case where the maxim clearly applies. This court has frequently recognized this maxim's logical value. In Catawissa R. R. Co. v. P. R. Railway Co.,255 Pa. 269, 99 A. 807, we held that where a lease specifically designates certain taxes which the lessee is to pay, and subsequently other taxes of a different character are levied upon the property, the principle expressio unius est exclusio alterius applies and the lessee will not be required to pay the additional taxes. See also Green Coates Sts., Phila.Passenger Ry., v. P. R. T. Co., 264 Pa. 424, 107 A. 784. InHollenback Coal Co., v. Lehigh Wilkes-Barre Coal Co., 219 Pa. 124,67 A. 987, this court said in applying the maxim expressio unius est exclusio alterius: "In the face of what is expressly given to the lessee in return for the rentals or royalties to be paid by it, it cannot ask that the law give it more. The parties agreed what the one should pay and just what the other should get for its money, and the appellee, having got all that the lease gave it, cannot get more."

It should be noted that in paragraph five it is provided that in case of default by the buyer "in the payment of any instalments of rent or interest, or in the payment of any premiums of insurance, as the same shall become due and payable, or if the Buyer shall remove any of the property herein agreed to be sold from the premises aforesaid, without the previous written consent of the Sellers, or shall fail to comply with the provisions of Paragraph 4 hereof, then and in such case, the said tenancy shall forthwith cease and determine, at the option of the Sellers, and it shall be lawful for them to retake and repossess themselves of said property *Page 538 as though the same had never been rented," (italics supplied.)

In Star Drilling Machine Co. v. Richards, 272 Pa. 383, there was a similar provision in the contract. There certain machinery was leased and the agreement provided that if default was made as to any of the payments, plaintiffs "might repossess themselves of [the machinery] without process of law." To secure one of the instalments of rent, the note in suit was given. Because later payments were not made, the note was protested, suit was brought, and thereafter plaintiffs took possession of the machinery. At the trial a verdict was directed for plaintiffs. Defendant's point for binding instructions was refused and his motion for judgment n. o. v. was dismissed. Upon appeal to this Court it was held, in an opinion by Justice SIMPSON: "Where, as here, the agreement provides the lessors 'might repossess themselves of [the machinery] . . . as though these presents had never been made,' the only possible conclusion is that 'if the agreement "had never been made," the note would not have been given; when the agreement is rescinded, with like effect as if it "had never been made," the note fell with it for want of consideration.' . . . The judgment of the court below is reversed and judgment is here entered for defendant n. o. v."

In Seanor Bierer v. McLaughlin, 165 Pa. 150, 30 A. 717, this court held that where a contract of bailment in the form of a lease provides for the delivery of a machine at a certain hire, payable in instalments, the lessor to retain title until the last instalment is paid, and the contract is accompanied by a bond with a warrant of attorney to confess judgment, "as collateral to secure the rental," the lessor may, upon default in the payment of one of the installments, either rescind the contract and take possession of the machine, or enter judgment upon the bond, and that the two remedies are however not cumulative, and if the lessor resumes *Page 539 possession of the machine, he cannot enter judgment upon the bond. See also Ketcham v. Davis, 31 Pa. Sup. Ct. 583, and In ReOrpheum Circuit, Inc., (Dist. Ct. S.D. N.Y.), 23 F. Supp. 727.

In 24 R. C. L., p. 491, sec. 785, it is stated: "The right of the seller to recover the instalments of the price and his right to retake possession of the subject matter of the sale are regarded as inconsistent, and, after he has exercised his right to retake possession, it is generally held that he cannot recover unpaid instalments of the price, though the promise of the buyer to pay the same was unconstitutional or was evidenced by notes or the like." (Citing numerous cases.)

Kelley Springfield Road Roller Co. v. Schlimme, 220 Pa. 413,69 A. 867, was an action upon thirteen promissory notes given as evidence of monthly instalments of payments due for two steam road rollers sold on a "lease contract." These notes were to draw interest at 6%. The lease gave the lessor the right to repossess the rollers in case of default in payment of the notes, etc. If payments were duly made the lessee could secure a bill of sale for the machines for one dollar each. Claiming default the plaintiff repossessed the rollers and also sued forthe principal and interest on the notes. It was held that plaintiff could not maintain this latter action. This Court said: "The failure to make payments as they became due was a breach of the contract and the plaintiff had the right to rescind 'and take possession of, and remove same without trespass.' . . . The plaintiff's assertion of its right to rescind by repossessing itself of the machines was the end of its alternative right to enforce the agreement by compelling payment of the consideration money."

In Auto Security Co., Inc., v. Canelli, 80 Pa. Super. 43, Judge KELLER, speaking for that Court, said: "Under the terms of the lease it was optional with it either to enter judgment for the balance of the entire rental or purchase money reserved in the contract, or *Page 540 to retake possession of the automobile [citing cases]. . . . Justice would not permit it to retake the car and at the same time demand payment of its value."

In the instant case the remedies of the seller were cumulative only to a limited extent. What those limits are is stated in clear language. The word "rental" in the last sentence in paragraph 5 of the agreement of June 17, 1936, clearly does not include interest on $25,000.00, which sum is named in paragraph one of the agreement as the value of "the newspaper plant, equipment, etc." In other words, $25,000 was the purchase price of the plant, etc., and any interest due was interest on that purchase price. Rent as used in paragraph five is quite a different thing than interest on the purchase price or on any instalment of the purchase price. In the very beginning of paragraph five the word "rent" and the word "interest" appear with the disjunctive "or" between them. Upon the failure to pay "rent or interest" or insurance premiums or upon certain other breaches of the lease, "the tenancy shall forthwith cease and determine, at the option of the sellers, and it shall be lawful for them to retake and repossess themselves of said property as though the same had never been rented." Immediately thereafter the cumulative clause sets forth that "upon the determination of this agreement" the sellers shall have the right "to collect rental up to the time of repossessing themselves of the property", but no right isgiven to collect interest, and, as above pointed out, the parties in their own contract treat "rent" and "interest" as two things utterly distinct.

The cumulative clause in the lease (which is the last sentence in paragraph five) clearly does not include either theprincipal of $25,000 or any interest on it or any interest onany instalment of it. The word "rental" as used in that clause means nothing but rental at the rate of $625.00 a month in advance, from the date of the contract, to wit: June 17, 1936, up to the time of *Page 541 the sellers' repossessing themselves of the property, which was in the third month of the contract, i. e., on August 21, 1936. That is exactly what it says and the language admits of no other interpretation.

The reclaiming of the goods was a renunciation of the contract except as expressly provided, and no provision for the collection of interest after repossession of the property was provided for.

Mr. Justice PATTERSON and Mr. Justice PARKER concur in this opinion.