Scott v. Massey , 1901 Pa. Super. LEXIS 191 ( 1901 )

Opinion by

Beaver, J.,

Stiles v. Seaton, 200 Pa. 114, distinctly decides that neither a definite period nor a stipulation to return the property is essential to the existence of a bailment. If, therefore, there was nothing in the case under consideration but the written agreement of April 12, 1900, between the plaintiff and Massey, we would be bound to hold that it constituted a bailment and the instruction of the court below to find for the defendant would have been erroneous. But the written agreement is not the inception of the transaction. The subject of the alleged bailment is “one No. 10 Volunteer Steam Boiler lying and being in and upon premises No. 128 North Twelfth Street, Philadelphia.” This boiler, as appears from the testimony of the plaintiff, was sold to Massey January 6, 1900, charged in plaintiff’s book and delivered to and installed in the hotel kept by Massey. It was only after repeated efforts to secure payments on account of the sale and as many failures that the so-called bailment was resorted to. If between January 8, the date of the sale, and April 12, the date of the written agreement, Massey had sold the boiler to the appellee, he could undoubtedly have passed a good title thereto; or, if in the meantime creditors had levied thereon and a sale had been made under the levy, a good ' title would have passed to the purchaser. This was not the case of Stiles v. Seaton, 200 Pa. 114, where there had been a conversation between the parties as to the sale of certain machinery in which “ no price was named nor any time or terms of payment. Before complete delivery was made, the parties signed the written agreement.”

Mr. Justice Mitchell, in the opinion in that case, says: “ But even if there had been a complete verbal agreement to sell, no title passed until delivery. The vendor might still rescind or the parties change it to a bailment.” So in Goss Printing Press Co. v. Jordan, 171 Pa. 474, “ The fact that the original intention of the parties is to make a sale and that such is the legal effect of their first agreement does not prevent a change, while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions.”

Massey, having the boiler in his possession under the contract of sale of January 6, 1900, which was fully executed, sold and delivered it, together with the furniture and fixtures of his hotel, to Myerson, without notice of the written agreement of April 12, 1900. Plaintiff, having issued a writ of replevin against Massey, took the boiler from the possession of Myerson who, upon leave of court, intervened as defendant.

There was no dispute as to the facts and the court below held that as between the plaintiff who sold the boiler to Massey and the defendant Myerson, to whom Massey sold it, the written agreement of April 12,1900, was not a bailment and directed a verdict for the defendant, and in this, which is the only complaint of the appellant, there was no error.

Judgment affirmed.