Reyer v. Rice ( 1908 )

Opinion by

Orlad y, J.,

On the application of the sheriff for an interpleader, a feigned issue was framed in the court below, in order to determine the title to certain personal property, which on May 26, 1905, was owned by Lewis C. Rice and Edward J. Royer, and used by. them in a job printing establishment and also in the printing of a newspaper. On that date the partnership between them was dissolved by Rice selling the newspaper business part of the enterprise to E. J. Royer who, in turn, sold the same property to Reyer and Laubach, the plaintiffs herein, and executed a bill of sale to them for the presses, racks, boiler,, engine and other articles that were incident to and part of the newspaper establishment; Royer, and afterwards Reyer and Laubach, paying therefor a fair consideration for the property. It is conceded that as between Royer and the purchasers, Reyer and' Laubach, the transaction was an entirely honest one, the only question being as to the integrity of the sale affecting the rights of Royer’s creditors.

An execution was issued at the instance of Rice, the defendant herein, on a judgment he held against Royer, and a levy made thereunder on these goods: the plaintiff in the execution (Rice) contending that there was not a sufficient delivery of possession of the property to consummate the sale in law.

Immediately after Rice’s interest in the partnership property had been sold, he took down from the building the sign indicating that he and Royer were the publishers and owners of the newspaper, but no other sign was substituted in its stead. In addition to this, the editorial column of the newspaper, prior to the dissolution of the partnership, contained the announcement that Rice and Royer were the proprietors, and Edward J. Royer, the editor, and following the dissolution,, an announcement in the same column stated that Edward J. Royer was the editor but there was no statement or suggestion as to who was the owner or proprietor.

Subsequently, they moved the property some distance from its former quarters, but failed to give any notice of its ownership, either by advertising in the newspaper, or placing signs on the building or room in which it was located, or on the machinery.

When the levy was made Reyer and. Laubach claimed to be the owners, and the question submitted to the jury on the trial of the feigned issue' was purely one of fact. “Did these plaintiffs, Reyer and Laubach, take such possession of this property as would indicate to the public that they were the owners thereof? If they did, then your verdict should be in their favor for the goods described; if you find that they did not take such possession as the law requires and as I have defined to you, your verdict should be for the defendant.”

It is well settled that a change in the location of the property is not necessary, but due regard must be had to the care of the property, its intended use, the nature of the transaction, position of the parties, etc., and there are many instances in which, from the necessity of the case, there can only be a constructive delivery. When a purchase is made in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee assumes such control of the property as reasonably to indicate a change of ownership, the delivery of possession as matter of law, cannot be declared to be insufficient. No such change of possession as will defeat the fair and honest purpose of the parties is required: Garretson v. Hackenberg, 144 Pa. 107. Whether the sale was in good faith or colorable, whether under the circumstances the change of possession was all that could reasonably have been expected by the vendees, taking into, consideration the character and situation of the property, were questions of fact tó be determined by the jury.

The Supreme Court held in White v. Gunn, 205 Pa. 229 (in referring to the leading case of Clow v. Woods, 5 S. & R. 275, which requires the purchaser of personal property to take and retain possession of it), “It is as true now as it was when the rule was announced in that case, nearly a century ago, that, if a purchaser pays the price for goods purchased by him, without taking possession of them, he takes the risk of the integrity and solvency of his vendor when the rights of a subsequent bona fide purchaser or an execution creditor arise.”

Assuming that the purchase was made in good faith for a valuable consideration, certain acts which the law regards as of equal importance with the payment of consideration money, yet remained undone. The court below, submitted the whole question to the jury under a fair and adequate charge.

It is quite true that the declarations of a vendor, made after the sale, are not competent evidence to affect the title of the vendee. Royer’s acceptance of the draft on the “ Cement News ” and the affidavit made by him-, as editor, that a certain bank statement had been published in the newspaper, were substantive facts to be taken not as mere declarations, but in connection with the general management of the business by the persons who had actual control of the property.

The editor of the newspaper could not make the affidavit if he were not in fact identified with it, and no other than an owner of the “ Cement News ” would accept the draft in evidence. These facts were for the consideration of the jury in order to determine the bona fides of the transfer of possession.

The judgment is affirmed.