Hotel Company. Replevin. Rule for Judgment for want of a sufficient affidavit of defence. H. A. Cyphers and G. R. Booth, for Plaintiffs. Heydt, P. J., 56th Judicial District, specially presiding, November 13, 1912. The plaintiffs sued out a writ of replevin for the following goods and chattels, to wit: "One caroussel and gavioli cardboard organ, consisting of a three row, 48 feet in diameter, caroussel with galloping horses complete, 50 figures, gavioli playing organ, 1 10-horse-power electric motor, 1 1-horse-power electric motor, guy ropes, ring posts, decorations, two boxes of poles, lot of rings, 200 yards cardboard music, switchboard and electric wiring and all necessary appliances and sundry articles connected with the erection and operating of the caroussel situate in the Casino at Central Park, Rittersville, Pa." The defendant gave a counter-bond and retained possession of the property. The title to or ownership of the property in suit depends upon the interpretation of a lease between the parties to this suit. The lease being in writing its construction is for the Court. The defendant is the owner of an amusement park, known as Central Park, located at Rittersville; in Central Park is a building known as the Casino building in which was installed a caroussel. The contract of lease is dated April 24, 1909, and provides for two specific matters; first, the leasing of said Casino building, and second, the sale of the caroussel. The contract of lease provides inter alia: "Now therefore, for and in consideration of the sum of One Dollar to the Lessor in hand paid by the Lessees, the receipt whereof is hereby acknowledged, and of the covenants and agreements hereinafter set forth and of the payments to be made as hereinafter mentioned, the parties hereto for themselves respectively and their respective successors, executors and administrators do hereby covenant and agree as follows: "The Lessor doth hereby demise and let unto the Lessee a certain building known as the Casino in said Park, and now containing the caroussel, which is situated immediately West of and adjoining the Roller Coaster, provided that said building shall be used only for the operation of a caroussel. "To have and to hold the same unto the Lessees for the term of five (5) years, commencing on the twentysecond day of April, A. D., 1909. "The Lessees shall have the right and privilege of renewing and extending this lease for the further term of five years, commencing at the expiration hereof, upon the same terms and conditions and subject to the same reservations as are herein mentioned and expressed, except that they shall have no further right to renew or extend the same, provided, however, that this lease shall not be renewed and extended unless the Lessor shall be thereto requested in writing by the Lessees at least three months before the expiration of the term hereby created. "The Lessor hereby agrees to sell to the Lessees, and the Lessees agree to buy from the Lessor the coroussel with all its apurtenances now contained in said Casino, and to replace it with another as below mentioned, and the Lessees agree to pay for the same the sum of Thirtyfive Hundred Dollars ($3500), which shall be paid as follows: "$1,000 at the time of the signing of this contract, which amount is hereby acknowledged. "$1,000 on July 1st, 1909. "$1,000 on August 1st, 1909. "The caroussel to be the property of the Lessor until the full amount is paid. "The Lessees for the consideration aforesaid agree to forthwith furnish and equip said Casino building with a three-row caroussel 42 feet or more in diameter, and with one row of jumping horses in accordance with the photograph hereto attached, and made a part hereof, and a gavioli 83-key cardboard organ with two drums, cymbals, etc. The Lessees also for the consideration aforesaid agree to paint the Casino and caroussel with one coat of paint during the month of May of each year of the duration of this contract, and keep the said Casino building and caroussel in good repair at their own expense. "All of the aforesaid improvements and equipments shall be built and installed in accordance with such plans and specifications as shall be approved by the Lessor. "In case the Lessees wish to change or remove said new caroussel or organ, it shall be done only with the written consent of the Lessor. "The Lessees furthermore for the consideration aforesaid, agree to operate the aforesaid caroussel each and every day during the park seasons, to maintain it in good order and condition, to furnish and pay all help, and to pay the Lessor One Thousand Dollars ($1,000) per year, payable monthly in advance." "The Lessees hereby grant unto the Lessor the right and option of purchasing the aforesaid leasehold, together with all things thereunto belonging or appertaining, on September 15th, 1909, at the price of $5,000, on September 15th, 1910, at the price of $3,500, and thereafter at the price of $2,000." "At the end of said term the Lessees may remove their property from the demised premises, but shall do so without doing any damage thereto." The Plaintiffs took possession of said Casino building April 24, 1909; made the payments on the old caroussel and installed the new caroussel as provided in the contract (at a cost of $10,000 as they allege). The Defendant under section 8 of said lease on September 15th, 1910, undertook to exercise its option to repurchase the leasehold at the price of $3,500 and made a tender of the purchase money coupled with the demand that the Plaintiffs execute and deliver to the Defendant a bill of sale of the goods and chattels (the caroussel, etc.) This proposition the Plaintiffs refused. The Defendant subsequent to September 15, 1911, twice notified the Plaintiffs of its readiness to pay $2,000 for the purchase of the leasehold, coupled with a demand for a bill of sale of said chattels which the Plaintiffs refused. On May 20, 1912, the Defendant took possession of the Casino building and of said chattels, claiming that it had the right to repurchase the leasehold under the contract and that the said chattels were a part of the leasehold. The consideration named in the contract is One Dollar. The rental named in said contract is $1,000 per year payable monthly in advance and other good and valuable considerations. The contract so far as it related to the caroussel was one of purchase and sale. It states the object of the contract thus: "Whereas, said Lessees desire to lease the Casino building in said Park and buy the Caroussel for the purposes hereinafter mentioned." The provision is: "The Lessor hereby agrees to sell to the Lessees, and the Lessees agree to buy from the Lessor the Coroussel," etc. When one party agrees to sell and the other party agrees to buy, when the terms agreed upon are carried into effect, the title passes from the seller to the buyer. That this was the intention of the parties to the contract is evidenced by the provision: "The caroussel to be the property of the Lessor until the full amount is paid." If it was not the intention that the title should pass but that the caroussel should remain a part of the leasehold only, then there was no need for this provision. There is also a provision in the lease that the Plaintiffs may remove their property. If they have no property, there would be no need for a provision giving them the right to remove it. There is also a provision in terms for the removal of the new caroussel. This would be unnecessary if it did not belong to the Plaintiffs. Without going into any extended discussion we are clearly of the opinion that when the Plaintiffs paid for the old caroussel it became their property; and that when they bought, paid for, and installed the new caroussel the title thereto remained in them; and that there is no rule of law or construction that made these chattels appurtenant to the leasehold, or made them fixtures to the real estate so that the title thereto would pass to the Defendant and that the Defendant could hold them as against the Plaintiffs. From which it follows that the Plaintiffs were not bound to accept the several offers of the Defendant as made to repurchase the leasehold; that the title and the right of possession of the chattels in suit is in the Plaintiffs and not in the Defendants; and that the Plaintiffs are entitled to recover in this suit. There is no merit in the defense that this suit cannot be maintained because the name of Patrick J. Kilcullen does not appear in the lease. Now, November 13, 1912, the rule for judgment for want of a sufficient affidavit of defense is made absolute. TOWNSHIP OF WHITEHALL vs. CLEAR SPRINGS WATER CO. Townships-Townships of First Class-Taxation-License Tax-Police Powers-Ordinances. Townships of the first class have the power to impose an annual mileage license tax on water mains. An ordinance of a township of the first class, levying an annual mileage license tax of twenty-five dollars per mile on water mains laid within the township, is, under the circumstances, grossly out of proportion of the actual cost of necessary inspection, and therefore invalid. In the Court of Common Pleas of Lehigh County. No. 39 September Term, 1911. Township of Whitehall vs. The Clear Springs Water Company. Assumpsit. Rule for Judgment for Defendant, n. o. v. Thomas F. Diefenderfer and Francis G. Lewis, for Plaintiff. Frank Jacobs and E. J. & J. W. Fox, for Defendant. Trexler, P. J., September 11, 1912. The Township of Whitehall is a township of the first class. By ordinance of November 7, 1904, pages 102 to 103, the commissioners of the township fixed the license tax on all water companies operating in the township at twenty-five dollars per mile of mains per year as an inspection tax. Under the Act of 28th of April, 1899, P. L. 104, classifying townships, Sec. 7, Clause 5, the power "and generally to take all needful means for securing the safety of persons and property within the township" vested the townships of the first class with the right to impose a reasonable license tax on telegraph and telephone companies for each pole in the township. Lower Merion Township vs. |