Gattle Bros. v. Kremp , 6 Pa. Super. 514 ( 1898 )

Opinion by

Orlady, J.,

Joseph P. Kremp, of Reading, Pa., and Gattle Brothers, of New York City, were creditors of James M. Burkhart, who was doing business as a jeweler in Reading. After the - indebtedness of Burkhart to Kremp had been created, the former became indebted to Gattle Brothers for diamonds, jewelry, etc., which were purchased from them, for sale in Ms store. Kremp was unable to pay the claim of Gattle Brothers upon their demand, and a correspondence ensued'between the parties wMch resulted in an offer by Burkhart to deliver to Gattle Brothers some of the goods purchased from them, and goods purchased from other dealers, in payment of their claim. Pursuant to this offer on October 15, 1896, the parties met in a room of a hotel in Reading, to which place the goods were brought by Burkr hart, and were then examined, scheduled, marked with their then value, and in payment of Ms debt were delivered by Burk-hart to Moses Gattle for the plaintiff. Subsequent to this, but at the same meeting, the goods were delivered by Moses Gattle, upon a memorandum bill, to Burkhart, as a consignee, to be by him sold as the property of Gattle Brothers, and upon their account. The goods were placed on sale in the store of Burk-hart without any special mark of identification.

On December 5, 1896, Kremp issued an execution and levied upon the stock of goods in Burkhart’s store, including the goods now M dispute, which were then claimed by Gattle Brothers, in consequence of wMch a feigned issue was framed to determine the title thereto.

On the trial, the defendant requested the court to say “ That under all the evidence the verdict must be in favor of the defendant except as to the single combination ring, (f 9.50) wMch the defendant admits was consigned originally.”

The learned trial judge refused tMs point, and the evidence was submitted the jury in a well guarded charge.

While the facts were not controverted, the evidence was of such a character as might admit of opposite inferences, and it was proper to refer it to the jury. The defendant contended in the court below, and as earnestly urges in this court, that he was entitled to binding instructions under authority of a line of cases beginning with Clow v. Woods, 5 S. & R. 275.

The court said “ The law cannot undertake to fix any particular time during which a man must have held actual possession of goods in order to constitute a transfer which will be valid, but it requires that the transfer shall have been an actual one, with the right in the transferee of continued possession. If there was a transfer, a legal, valid transfer at the time, then the next question arises, what was the nature of the re-transfer of these goods to Burkhart. It is for you to say whether this retransfer was a bona fide transfer to him for inspection of the goods, or on consignment to be sold by him on Gattle Brothers’ account, as the property of Gattle Brothers, or was it a mere renewal of Burkhart’s former possession, a resale to him of the goods, with the addition however as a stipulation between these people, that in order to secure payment by Burkhart to Gattle Brothers the title should remain in Gattle Brothers until paid. If it was a bona fide and honest consignment, the goods to be sold as the property of Gattle Brothers, then they remained the property of Gattle Brothers, and this execution cordd not be lawfully levied upon this property.”

The point submitted by the defendant assumes the validity of a consignment to preserve the title in the consignor in excepting from his claim the single combination ring ($9.50), which the defendant admits was consigned originally — and he could not have objected to the conclusiveness of the transaction if the goods in dispute had been taken by Moses Gattle from Read-, ing to the New York store, and, with the single combination ring, honestly consigned from that point, all of which could have been done within twenty-four hours.

The fairness of the consideration in accepting the goods in payment of a preexisting debt is not questioned.

In the cases on which appellant relies there was no evidence, or there was a conflict of evidence, as to a change of possession of the property, but in this case, under the charge of the court, the verdict means that the first transaction was honest, the consideration a valuable one, accompanied by an actual physical delivery of the property, free from any pretense, collusion or condition, resulting in a consummated sale, and the exclusive right in Gattle Brothers to a continued, possession. These facts being found, what difference did it make to this creditor of Burkhart as to whether the goods were consigned tp his debtor from Reading or New York? If the right to a continuous possession, with an absolute title, became fixed in Gattle Brothers, this creditor was not injured by their consignment of these goods to him. His debt had been long overdue, and no false or delusive credit was created, and under the facts as determined by the verdict the possession of Burkhart at the time of the levy was entirely unrelated to his former possession.

The stock of goods kept for sale in a store is continually changing, and a lender does not extend general credit to an owner on the faith of a particular item of property in his store. There is no evidence in the case intimating that Kremp knew, or did not know, that this debtor kept or sold goods on consignment. The aim and trend of all the decisions has been to prevent fraudulent imposition on creditors by a misleading possession, but the open, notorious and exclusive possession as urged by appellant would be destructive of all sales under consignment. Admitting that there was no collusive or actual fraud, the appellant contends that the transaction was fraudulent in law because of the insufficiency of Burkhart’s possession as consignee of Gattle Brothers; and that the honesty of the transaction or the intention of the parties are not to be considered.

We cannot go that far. The honesty of the transaction and the intention of the parties were not the sole tests by which its legality was to be determined, but they were very important, constituent parts of it, and when a jury finds that they are accompanied by an unconditional, physical delivery of possession as could reasonably be expected, taking into view the character and situation of the property, and the relation of the parties, based on an honest consideration, they became decisive of the question: Hugus v. Robinson, 24 Pa. 9; Billingsley v. White, 59 Pa. 464; McKibben v. Martin, 64 Pa. 352; Evans v. Scott, 89 Pa. 136; Crawford v. Davis, 99 Pa. 576; Ziegler v. Handrick, 106 Pa. 87; Buckley v. Duff, 114 Pa. 596; Renninger v. Spatz, 128 Pa. 524; Stephens v. Gifford, 137 Pa. 219; McGuire v. James, 143 Pa. 521; Garrettson v. Hackenburg, 144 Pa. 107; Bell v. McCloskey, 155 Pa. 319; Goddard v. Weil, 165 Pa. 419; Goss P. Co. v. Jordan, 171 Pa. 474; Post v. Berwind-White Co., 176 Pa. 297. The distinctions noted in Clow v. Woods, 5 S. & R. 275, and in many later eases fully warranted tbe submission of this case to the jury. If the proof warranted the finding of the fact that the last transaction, called the retransfer, was a constituent part of the first, or if the two taken together were a mere device or expedient to pledge the property as a security for money, the result would be different, but the contention of the plaintiff was supported by evidence which convinced the jury that the consignment was a separate and entirely independent undertaking, and as such it must be considered: Murray v. McCarthy, 5 Cent. Rep. 169.

The assignments of error are overruled and the judgment is affirmed.