Powell v. Clawson , 1909 Pa. Super. LEXIS 122 ( 1909 )

Opinion by

Head J.,

Powell was the owner of a number of horses, coaches, sleighs and other chattels with which he operated a boarding and livery stable in Philadelphia. The business was conducted under the name of H. L. Collins, manager. In December, 1905, he made an agreement with one Price to sell to him all of said property. The agreement was reduced to writing and executed by the parties. As the integrity of the writing is in no way assailed, the terms and conditions of sale are fixed, and it becomes a question of legal construction to determine what rights were conferred, what obligations imposed on the parties by the contract they made. The purchase money was $5,000. One thousand dollars were to be, and were, paid on the execution of the agreement. A second payment of like amount was to be made on or before January 10, 1906. It was further provided, “that the title of the said goods and chattels shall remain in said Powell and that said business shall be continued in the name of H. L. Collins, Manager. The said Powell, however, covenants and agrees to give title and possession and to make delivery of seisin to said Price upon said Price making the said second payment of $1,000 and giving to said Powell security, satisfactory to said Powell for the balance of the purchase price,” etc.

That the second payment was not made on time is conceded, but partial payments were made on account and accepted and extensions given until the end of May, 1906. A meeting was had on May 26, when the account was gone over. The parties differ as to the result arrived at. Price testifies the account showed he had fully paid the second payment. Powell asserts there was then still due a balance of more than $200 and that he gave Price until the next day to pay. However this disputed fact may be, it is clear that Price never gave or tendered to Powell the security for the balance of the purchase money, required by his contract. Until he did this he could not assert, as against Powell, possession or the right of possession of the property in the teeth of the contract out of which alone sprang any rights he had. On May 31, 1906, Powell resumed full possession of the property, terminating any partial possession which Price, or his employees, had been permitted to take while he was making payments on account.

The contract, whilst it provided for a retained possession by the vendor, was perfectly valid and binding between the parties. No principle of law or rule of policy forbids the making of such a contract. There was no moral or legal obligation resting on Powell to turn over his property to a stranger who had neither paid nor secured the price of it. No court of law or equity would aid Price in enforcing his claim to possession until he had performed the condition which must precede his right. Frech v. Lewis, 218 Pa. 141, and other cases cited in appellant’s brief have no application because they dealt with transactions where a retained possession was neither contemplated nor provided for. We are satisfied, therefore, Price could not have successfully challenged the possession of Powell, as matters stood on May 31, 1906.

On that day no intervening right had vested in anybody. On June 5 following Clawson caused a 'judgment, on a note with warrant of attorney, to be entered against Price. An execution issued and the property in question was levied on as the property of Price. Powell claimed it and an issue was duly framed to try the title. The learned trial judge gave binding instructions in favor of Powell, the defendant, and Clawson appealed.

That Clawson could not, by his later levy, successfully assail the rights of Powell, long before intrenched in possession under a clear legal right, is ruled in Hineman v. Matthews, 138 Pa. 204; Durr v. Replogle, 167 Pa. 347. The former is practically “ on all fours” with the case at bar. This is clearly pointed out in the careful and satisfactory opinion of the learned trial judge refusing a motion for a new trial, which, fully, we think, vindicates the judgment he entered.

Judgment affirmed.