Jones v. Wands , 1896 Pa. Super. LEXIS 157 ( 1896 )

Opinion by

Orlady, J.,

John P. Jones delivered the possession of a span of horses., set of harness and one wagon, to Cornelius Wands, about June 1, 1890, and as evidence of the contract between .them the parties executed, on July 2,1890, the following agreement-:

“Memorandum of agreement, made and concluded this first day of July, A. D. 1890, between John P. Jones of the'city of Scranton of the one part, and C. Wands of the same place, of the other part, is as follows, to wit: The said first party hereby lets, leases and demises to the said second party the following property, to wit: One span of horses, set of harness, and one wagon, all of the cash value of four hundred dollars, for the term or period of three calendar months from the date hereof. Said second party hereby covenants and agrees to keep the said property carefully, and use it in such 'a manner as not to injure it or to destroy its value; and if he should neglect or refuse so to do, upon ten days’ notice of his intention thereof, the first party may terminate this lease. In consideration whereof the said second party hereby agrees to pay to the said first party the sum of one hundred and thirty-three and one-third dollars ($133.33), each and every month during said term. And it is also agreed that if the said second party shall fully pay the amounts above specified, that then the said first party shall execute and deliver to the said second party a bill of sale for the said property, the rentals above specified then to b^ applied as payment of the purchase money on said property, and until the whole of said sum be fully paid, the title to said property shall be and remain in the said first party. And it is also agreed that the said second party shall be permitted to pay a portion of said rentals in work, as follows: Relaying sidewalk at corner of Penn Avenue and Centre street within one week from the date hereof; laying sidewalks and walks in yard at corner of Monroe Avenue and Delaware street, within thirty days from the date thereof; sidewalks and coal vaults at Nos. 907 and 909 North Washington Avenue, to be completed within three.months from the date hereof. All this work to be done under directions of the first party, and to be allowed for at market prices for such work. The balance of the sum aforesaid to be paid in cash. Witness our hands the day and year aforesaid.

“John P. Jones

“ C. Wands.”

On August 9, Wands confessed a judgment before aider-man Post for one hundred and forty dollars (1140), in favor of Peter Mulligan, upon which an execution was issued to constable C. Q. Carman, who, on August 16, sold the property mentioned to Geo. M. Watson. On the same day John P. Jones had issued a writ of replevin, under which the described property was taken by the sheriff and delivered to him.

This cause was put at issue by a plea of non cepit and property, and after two trials in the court below, a verdict was returned in favor of the plaintiff for the property described, and judgment entered therein. In submitting the cause to the jury, the trial judge instructed the jury in part as follows: “ If the case depends upon that writing or depended entirely upon that writing, I should have to instruct you to render a verdict for the plaintiff, because standing upon the writing, there is merely a hiring of the property; there is no sale. That is a question for me to decide; that is, the matter being in writing, it is for the court, and not for the jury to say what the writing means; and my instructions to you are that this writing is a lease and conveyed no title to Mr. Wands in this property,” and submitted the question of fact to the jury, whether the written contract differed from the oral one, made when the property was delivered by Jones to Wands.

The verdict conclusively determines that the minds of the contracting parties were the same, through the different stages of the. transaction, and that the writing of July 2, 1890, was the only contract between them. On the trial the plaintiff contended the written contract constituted a bailment, and defendants that it was a conditional sale, each submitting points for special instruction. If the general direction of the trial judge was correct in holding the paper to be a lease, the judgment is proper; and in deciding upon the effect of that paper, the statute creating this court directs that the decisions of the Supreme Court shall be followed as of binding authority. In Ott v. Sweatman, 166 Pa. 217, it is held “a careful examination of the cases will show that they may be reduced to two classes, one in which the goods have been bailed to the defendant, with the right in him to purchase them during the continuance of the bailment, or at its termination, and the other in which the goods have been delivered to the defendant, under a contract of sale, in which the seller has sought to retain a lien on them for the price. The courts, in determining whether or not the contract was one of bailment or one of sale with an attempt to retain a lien for the price, have not considered what name the parties have given to the contract, but what was its essential character.”

This was a bailment for use; the amount agreed upon was to be paid primarily as rent, and upon performance of all the conditions of the contract, the rentals'specified were to be applied as payment of the purchase money on the property which remained in bailment, and was not liable to a sale for payment of the lessee’s debts. Possession under such a' contract was not a fraud, otherwise much of the business of men would be ended, and the poorer the bailee the less would be his ability to- hire the use of property needful to him._ The delivery of possession alone, though a material indication of ownership, does not Of itself constitute a sale. There must be, in addition to the possession, at least such conditional or qualified title passed to the buyer as to give him a transferable interest in the chattels; such an interest as he can, at any time during the running of the condition, sell and dispose of at his own will: Edward’s Appeal, 105 Pa. 103. The contention by appellants, that because there was no agreement to return the property on the expiration of the term, is fully answered by Enlow v. Klien, 79 Pa. 488, which is adopted and followed in Edward’s Appeal, supra,“ neither is a stipulation for the return of the property on the expiration of the time during which the bailment is operative necessary, for if it is not returned the bailor may resort to his legal remedies, and thus enforce his contract.”

The Supreme Court has twice refused to reverse this case (Eulow v. Klien), and we follow it as an authority, though it has been severely shaken in Stadtfeld v. Huntsman, 92 Pa. 53, and in Farquhar v. McAlevy, 142 Pa. 233, which cases upon their facts are clearly distinguishable from this one. In Brown Bros. & Co. v. Billington, 163 Pa. 78, the only rule to be safely followed in this class of contracts is laid down, “ In all the cases which have come before us, presenting the question which appears by this record, we have referred ourselves to the contract of the parties, and upon its interpretation we have adjudged the rights of the parties litigant.” The verdict relieves this case of any doubt as to any change of intention of the parties. By it the written agreement is determined to be the only contract between them, and its character and effect is for the court alone. The purpose of the parties was to effectuate a sale in the future delivery to the bailee, who was to have actual possession in the meantime, under a different arrangement. The contract was a valid one óf bailment, which was preserved as between the parties, until terminated by compliance with the terms of the writing. The delivery, which is held to be a controlling circumstance, was made upon the express condition “ until the whole of said sum is fully paid, the title to the said property shall be and remain in the said first party” (Jones), who had full power to terminate the lease at any time, if the property was not, in his judgment, kept carefully, and used in such a manner as not to injure or destroy its value. The authorities are so fully and ably reviewed in Brown Bros. & Co. v. Billington, supra, and in Goss Printing Press Co. v. Jordan, 171 Pa. 474, that further citation is not deemed necessary.

From these authorities we decide the case, correctly disposed of in the court below. None of the assignments of error is sustained and the judgment is affirmed.