Puzis v. Temko ( 1907 )

Opinion by

Henderson, J.,

That portion of charge of the trial judge set forth in the first and second assignments of error did the appellants no possible harm. It was predicated of the plaintiff’s allegation that he had a right of redemption of the goods described in the bill of sale and that ten days after the bill of sale was executed the defendant, Schwartz, extended the time for redeeming the goods to September first. The plaintiff’s allegation was that the transaction between him and Schwartz was the pledge of his goods for a loan of money to pay his rent; that he was to have the privilege of redeeming within ten days; that within the ten days he applied to Schwartz for an extension of the time and that in consideration of 15.00 by him then paid to Schwartz the latter agreed that the time for redeeming the goods should be extended until September first. The bill of sale was absolute on its face and contained no reference to the right of redemption. The jury was instructed that it conclusively passed the title of the property to Schwartz. The appellants contend that the defense is an attempt to change the terms of the written contract by insufficient parol evidence. The case as presented by the plaintiff, however, sets up a new contract for a valuable consideration, made on August 15, under which the plaintiff had the right to pay back the money and redeem the goods. Evidence of what took place at the time the bill of sale was executed was competent as bearing on the agreement of August 15. If, as the plaintiff claims, the transaction was a pledge, simply, that fact would throw light on what occurred on August 15, and would explain why Schwartz accepted the *$5.00 and extended the time within which the plaintiff might pay him the money. If the agreement was made, as claimed by Puzis, on August 15, Schwartz recognized the title to the goods to be in Puzis. Puzis’ testimony is corroborated by the fact that the goods were left in his possession from the time the money was obtained from Schwartz until Temko took them away, during which time Puzis added to the stock and sold therefrom, as he claims, without accounting to Schwartz. It further appeared in the examination of the alderman who prepared the bill of sale, that Temko, who was attending to the business for Schwartz, told him it was the understanding that if the money was paid back within ten days the plaintiff was to have the goods ; that the money was to be paid to Schwartz, and that this part of the agreement was not put into the bill of sale because the alderman did not think it was necessary. It further appeared that the plaintiff was prepared to pay to Schwartz the amount he had furnished on the goods. There was evidence, therefore, from which the jury might find that Schwartz treated the transaction as a bailment, and that he agreed to extend the time for redeeming the property until September 1. As Temko carried away the goods before that time and asserted an absolute title thereto, the plaintiff’s right of action was complete if the facts were found in his favor.

Complaint is made in the third assignment that the court did not instruct the jury concerning the nature of the testimony necessary to establish fraud in the execution of an instrument in writing. The view which the court took of the evidence rendered such instruction unnecessary. The court submitted the question to the jury as to what took place on August 15 when it was claimed by the plaintiff a new agreement was made. This agreement, if made, accorded with the plaintiff’s understanding of the original contract, and, having been entered into after the delivery of the bill of sale, was binding on the parties. No request was made for instructions on the subject of fraud in the execution of the bill of sale, nor do we consider it necessary that the trial judge should have so charged as the case was submitted on the assertion of a new agreement.

The assignments are overruled and the judgment affirmed.