Houser v. Kemp , 1846 Pa. LEXIS 81 ( 1846 )

Per Curiam.

The defect in the plaintiff’s case is not so much the want of actual delivery, as the want of a contract of sale. Loy & Company delivered the property to Cogan as security for a debt, with power to sell it, or return it when the debt should be discharged. There was therefore a pledge, but no sale to Cogan, who was subsequently paid, but with whom the property was nevertheless suffered to remain. But before Cogan was paid, Loy & Co. told Houser, who had bailed Loy, that he (Houser) might have it, to secure him, as soon as Cogan should be paid ; and subsequently, that he (Loy) had nearly paid off Cogan, and that when that should be done, Houser might go and get the property. Houser said, that he himself could pay the balance, if Loy could not; but never did so, or took possession of the property. It is to be presumed from this, that Houser was to have the property in pawn as Cogan had it; but even if the agreement amounted to an executory contract to sell, (and by no interpretation could it be more,) it never was executed. The facts of the case show no more than an offer of terms not accepted or acted upon.

Judgment affirmed.