Creps v. Dunham , 69 Pa. 456 ( 1871 )

The opinion of the court was delivered, November 6th 1871, by

Sharswood, J.

This case has some appearance of complication and difficulty, as presented by the record and paper-books, but if' we exclude from it all extraneous and immaterial facts, that complication and difficulty will vanish. It may be thus stated: Hatch had made a contract with a number of landowners for what is termed “ timber-leavethat is, that he should have the right to cut timber on their land and manufacture it into staves, he paying a certain sum per thousand for the timber of the staves so manufactured ; but the staves were not to be removed from the land until they were paid for. He had accordingly cut and manufactured a considerable number, which were remaining on the land, unpaid for, in whole or in part. Hatch then contracted with Dun-ham in writing to deliver to him one hundred and twenty-five thousand shock staves at as early a period as possible, and not to exceed one year from the date of the agreement, which was October 18th 1866. This certainly was not an executed sale of any particular staves, but an executory agreement only, which might have been performed on his part by the delivery of any such staves, whether those now in question or others. But the agreement proceeded further to release and give over to Dunham all his (Hatch’s) interest of, in or to all or any timber or timber-leave which the said' Hatch may have or hold. It would rather seem that this did not comprehend timber already manufactured into staves, but was intended as an assignment of his interest in his contracts with the landholders for the privilege of cutting timber to be manufactured into staves, and of such as was cut but not yet manufactured. It is true, that Hatch might by parol have transferred his interest in the staves already manufactured to Dunham. There is some evidence, though slight, of such an agreement in the testimony of William Caldwell. “ Mr. Hatch said he could not get the staves hauled, and for Mr. Kellar (Dun-ham’s agent) to go on and get them.” It is highly probable that there was such an arrangement in order to fulfil, in part at least, his contract for the delivery of one hundred and twenty-five 'thousand staves, for which he had been paid in full. But what passed by that transfer to Dunham ? Not the possession or right of possession, for Hatch had it not himself to transfer. The possession and the right of possession were in the landowners until they were paid for the timber-leave. All that passed to ' Dunham was the right upon payment of the timber-leave to tak¿ the possession. No actual delivery of possession by Hatch to Dunham was necessary to make the transfer good as against Hatch’s creditors, under the cases of Linton v. Butz, 7 Barr 89, and Pier v. Duff, 13 P. F. Smith 59. Where the vendor himself has not the possession of the chattel, or the right of possession, it is clear that he cannot be required to deliver it. At the time of the levy by the sheriff on these staves, as the property of Hatch, Dunham had not the possession or the right of possession, and could not maintain an action of trespass for taking them: Fitler v. Shotwell, 7 W. & S. 14; Ward v. Taylor, 1 Barr 238; Lewis v. Carsaw, 3 Harris 31; Weitzel v. Marr, 10 Wright 463. Indeed, the contention that Dunham had any right to maintain this action, founded on the transfer of Hatch, was not pressed in the argument before us; but the able and ingenious counsel for the defendants in error relied principally upon the ground that there was evidence of a subsequent transfer by the landowners to him. They might, indeed, assign their' right of possession with their right to receive the unpaid timber-leave from Hatch without payment, if they chose. This would have given him the right of possession, and if he had a previous transfer of Hatch’s interest, the full property. But after looking carefully through the record, I can find no evidence of any such transfer by them by which they waived their right of possession until paid. Even as to McCartney, it was only as to ten or eleven thousand staves which were removed before the levy, and not comprehended in it. As to the residue, the witness stated distinctly that the purchase^at sheriff’s sale paid for the timber-leave. So as to the other landowners ; they all testified that the balance due them had been either paid or settled by the sheriff’s vendee. Indeed it would rather seem to have been considered that what was sold by the sheriff was merely the right, title and interest of Hatch, and had his return conformed thereto, Dunham could have had no shadow of title in any aspect of the case, to have maintained an action of trespass against him. As it was, the right to that action was in the landowners, if in point of fact the goods were taken out of their possession and delivered to the sheriff’s vendee without paying their claims.

The learned judge below, as well in his answers to the points presented to him, as in his charge, recognised these principles. But the error which runs through the whole was in submitting to the jury the question whether there had been a delivery of possession of the staves either by Hatch or the landowners to Dun-ham. Of this there was no evidence, that we can discover. The jury were instructed in the answer to the 3d point of the plaintiff, “ that merely looking at them would not be such possession,” which was certainly true; but in affirming the plaintiff’s 5th point they were in effect told that the plaintiff might take possession “ by counting.” Tomb certainly does testify that as the agent of. Dunham he went on the land and counted the staves. But that was no evidence of possession — the actual possession and the right of possession being at that very time in the owners of the land upon which they were “ cobbed” or piled.

We think there is nothing in the 5th assignment of error. It is true, that the record shows that a rule to arbitrate was entered by the plaintiff and arbitrators chosen. After this, however, the defendant was ruled to plead, and pleaded “ not guilty,” thereby admitting the case to be in court. But clearly, after going to trial without raising that objection, the plaintiff in error waived it, and cannot be heard here to complain.

Judgment reversed, and venire facias de novo awarded.