Mack v. Holsopple , 1917 Pa. Super. LEXIS 387 ( 1917 )

Opinion by

Williams, J.,

This was an action of replevin to recover an automobile. Defendant filed a counterbond and retained possession.

Plaintiff testified, inter alia, that in November, 1912, he had taken the agency in Johnstown, Pennsylvania, for the sale of the Oakland car; that at the time he was treasurer of the Park Automobile Company of Johns-town, which did not desire to sell that machine; that he bought a car from the Oakland company for demonstrating purposes, ordering it in the name of the Park company to give it prestige with the manufacturers; that, when the car arrived, he paid for it, as the Park company was practically insolvent; that part of the time the machine was kept at the company's garage, and part of the time at his own; that he used it sometimes for his own personal purposes and in demonstrating in furtherance of his agency; and at other times, with his permission, the company used it for hauling in cars, getting supplies, and hiring to others; that he continued to use it at his home at intervals until July 4,1913, after which he could not get possession of it as Smith, the president of the company^ had taken it and would not return it; that he had endeavored to get it back peaceably and by replevin in Cambria County, and finally replevied it in Somerset County; that subsequently defendant claimed it under an alleged sale by Smith on behalf of the Park company, made in June, 1913, of which sale he was unaware until after the replevin of the car; that whenever the car had been used by the company he had been given credit on the books for its use; and that his ownership of the car was known to its officers and employees.

Defendant’s witnesses testified that although plaintiff had advanced the money to pay for it, the car was bought by and for the Park company; that it had been constantly kept by the company in its own garage and used as its own; that Smith had sold it on behalf of the company to the defendant on June 28, 1913; that defendant immediately took it away and subsequently used it for hiring purposes; that no credit had ever been given to plaintiff for its use, nor had any of those connected with the company any knowledge that plaintiff was, or claimed to be, the owner of the car while it was in the hands of the company.

The court submitted three questions to the jury: 1. Did the plaintiff buy and pay for the car for himself, or did he advance the money to the Park company so that it could purchase the car? 2. Was there a bailment of the car with the company? 3. Was the plaintiff guilty of holding out the company as the owner of the car with the right to dispose of it? The court cautioned the jury that they must remember that plaintiff was an officer of the company, and under the circumstances they must consider the situation very carefully.

The assignments of error object to the charge and to the court’s answers to points. Under them appellant contends, (1) that appellee had neither title nor color of title to sustain his claim of ownership to the automobile in suit, and (2) that there was no evidence in the case to warrant the court in treating it as one of bailment.

There is no merit in the first contention. There was evidence of a purchase by and delivery to plaintiff, and he took the car to his own garage whenever he liked. The jury could have found that he bought the car and that it was delivered to him. The delivery to him by the carrier of the bill of lading was sufficient: Stephens v. Gifford, 137 Pa. 219. There was evidence that the Park company never had title to the car. The cases cited by the appellant might have been applicable if plaintiff were claiming against him by title derived through the Park company. He is, however, claiming title against the company.

There is no reversible error in the charge. The testi- • mony as to the limitations of the bailment being in dispute, the question of its existence was properly left to the jury. The definition of bailment is sufficiently clear to give the jury a readily comprehended idea of its attributes: Nicolette Lumber Co. v. Peoples Coal Co., 26 Pa. Superior Ct. 575; Krause v. Com., 93 Pa. 118. The title to personal property does not pass upon a sale by a custodian unless he possesses an actual right, or the owner has permitted him to have an apparent right to alienate: Quinn v. Davis, 78 Pa. 15. The instruction as to estoppel was correct: O’Connor v. Clark, 170 Pa. 318. The element of a dependence by defendant upon the apparent authority of Smith to sell the car is lacking from his first and second points, and the court would have erred in affirming them as worded. The plaintiff’s sixth point, when taken in connection with the rest of the charge, was properly affirmed with the addition of the words “if the jury so finds the facts.”

Under the evidence the right to the automobile was a question for the jury. The mere fact that the car was used by the company and that plaintiff was an officer thereof would not have justified the court below in holding as a matter of law that he was precluded from' questioning the effect of the sale by Smiths

The judgment is affirmed.