
    Parker, Appellant, v. Ransley.
    Argued October 18, 1923.
    
      Foreign attachment — Service of writ — Possession by sheriff— Warehouse charges — Liability for.
    
    A storage company cannot recover from the sheriff a charge for the storage of goods, which the sheriff attempted to seize in execution of a writ of foreign attachment, where the plaintiff never admitted that it had the goods in question, never permitted the sheriff to make a lawful seizure, and where there was no evidence that the property was ever taken possession of. In such case, the fact that the sheriff made a general return of the writ cannot be held to bind him for custody of the goods, existence of which the storage company refused to disclose.
    Appeal, No. 136, Oct. T., 1923, by plaintiff, from judgment of O. P. No. 1, Phila. Co., March T., 1921, No. 8028, on verdict for defendant in the case of Ernest Lee Parker, Executor of the Estate of Gilbert L. Parker, deceased (Gilbert S. Parker, also an Executor, having lately deceased), trading and doing business under the name of The Northwest Storage and Trust Company, v. Harry C. Ransley.
    Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Assumpsit for warehouse charges. Before Shoemaker, P. J.
    The facts are stated in the opinion of the Superior Court.
    The jury rendered a verdict for defendant, and judgment was entered thereon. Plaintiff appealed.
    
      Errors assigned were various rulings on evidence, charge of the court, answer to points, and refusal of plaintiff’s motion for judgment non obstante veredicto.
    
      L. W. Baxter, for appellant.
    The official return of the sheriff having been received in evidence, and the facts therein having been admitted as correct, it was error to receive the testimony of the deputy, in contradiction of the return: Jaffray’s App., 101 Pa. 583; Paxton v. Steckel, 2 Pa. 93; Reece v. Rodgers, 40 Pa. Superior Ct. 171; Welsh v. Bell, 32 Pa. 12; Garrett v. Turner, 47 Pa. Superior Ct. 128; Miller Paper Co. v. Keystone C. & C. Co., 267 Pa. 180; Corpus Juris, Vol. 21, page 1063; Holly v. Travis, 267 Pa. 136.
    February 29,1924:
    
      George S. Russel, for appellee.
    There was no evidence that the sheriff ever took possession of the goods, or knew of, or had anything to do with the seizure or care or custody of the goods, and he cannot be held liable for the storage: Munis v. Oliver, 24 Pa. Superior Ct. 64.
   Opinion by

Henderson, J.,

The plaintiff’s action is against a former sheriff to recover the amount of a bill for storage of household goods and other chattels after, as is alleged in the statement of claim, they had been made the subject of a foreign attachment brought by a creditor of the owner. To the statement of claim is attached an exhibit setting forth the various articles of household furnishing which were in the custody of the storage company for safe keeping and which, as it is claimed, were seized by the sheriff in the execution of the writ of foreign attachment, but were not taken possession of and removed from the warehouse, as a consequence of which they had remained in storage for more than four years when the attachment proceeding was discontinued or dismissed. The plaintiff relied on the return of the sheriff to the foreign attachment and to the admission of the defendant’s counsel that the debtor’s property was in the warehouse at the time the attachment came into the hands of the sheriff as set forth in the attached exhibit, as a basis for his demand on the late sheriff for compensation. The defense was that the sheriff never seized the goods; that when his deputy went to the warehouse for the purpose of serving the writ, the only person found on the premises was a man who refused to give his name or to state his connection with the business and who on inquiry refused to inform the officer after the latter stated his business, whether there was any property of the defendant in the warehouse or not. Because of this refusal the officer was unable to ascertain whether there was any property subject to. the attachment. He thereupon made the general return provided for in the act of assembly. From that time until the storage company demanded the amount of the storage bill, $420.39, the sheriff was not aware that the defendant in the attachment had any property in storage. It is evident that the seizure was not of the specific property set forth in the statement of claim. There is nothing in the case to show that this property was taken possession of by the sheriff; on the contrary it may be concluded from the evidence that neither he nor his deputy knew of its existence. It is a case therefore where the chattels on which the attachment was supposed to operate were never in the view or power of the officer who attempted to serve the writ, and whatever may be the effect of the return as between the plaintiff and the sheriff we think it might well be held that the appellee should not be permitted to assert that there was a lawful seizure of the property when there was neither possession nor view by the officer and when the storageman, whose estate the present plaintiff represents, obstructed the service of the writ: Morgan v. Watmough, 5th Wharton 127; Penna. R. R. Co. v. Pennock, 51 Pa. 244; Jaffray’s App., 101 Pa. 583; Lowry v. Coulter, 9 Pa. 351; Wood v. VanArsdale, 3 Rawle 405. But the plaintiff proceeds on the theory of implied assumpsit by the defendant to pay for the care of the goods after the service of the writ and the inquiry therefore arises whether there can be an implied assumpsit without a knowledge on the part of the defendant of the existence of the property and without evidence of his intention to permit the goods to remain in the custody of the storage company. Such an implication could not arise unless there was a mutual knowledge of the facts from which it could be fairly inferred that the officer desired the storage company to remain in the custody of the goods until they were disposed of under the attachment. The court submitted to the jury the inquiry whether the storage company or its representative had denied that there was any property of the defendant in the attachment in storage or had refused to give information as to the presence of such property on the premises or had led the deputy sheriff to believe that there was no property of the defendant in the storage warehouse, with the instruction that if they so found the plaintiff was not entitled to recover against the sheriff in this action. It is objected by the appellant that this is the admission of parol evidence to impeach the sheriff’s return, but we do not so regard it. The return does not identify the property which the plaintiff says was kept in storage. The action is based on the assumption that the defendant knowing the property to be there permitted it to remain subject to a reasonable charge for storage. But if the case were that the agent of the storage company denied that any property was there and refused to give any information to the officer on the subject, we see no foundation for the allegation that the general return of the sheriff on the writ of foreign attachment operated to bind him for the custody of goods, the existence of which the storage company refused to disclose.

The judgment is affirmed.  