Boud v. Bronson

Mr. Justice Mercur

delivered the opinion of the court,

In this case the court below ordered a nonsuit. The question now arising is, should the evidence have been submitted to the jury ? The defendant contends that the evidence shows the transaction was substantially an agreement by which Roudenbush, a wheelwright, was to make and deliver to the plaintiff, at a price stipulated, the wagon in question, but when the defendant purchased it at constable’s sale as the property of Roudenbush, it was unfinished, and the plaintiff had neither paid for it nor obtained possession of it. If these were the facts, and Roudenbush had furnished the materials, it is very clear the court committed no error in ordering the nonsuit.

We think, however, that this is not the only view presented by the evidence. The testimony -is not very clearly stated in the paper-books, but as we understand it, there is some evidence going to establish this state of facts, to wit: “ In 1869 Roudenbush resided in Montgomery county. He was indebted to the plaintiff, and also to the plaintiff’s father. An agreement was entered into between the plaintiff and Roudenbush, by which the latter was to make the wagon. Before it was finished Roudenbush moved to Chester county. On leaving, he delivered the running-gears to the plaintiff. Not long after the plaintiff also bought from him the bed of the wagon. After the plaintiff had retained all these parts of the wagon in his possession for several months, and procured other materials, he made a new contract with Roudenbush for its completion, at a stipulated price for the whole cost of the wagon. He thereupon took to the shop of Roudenbush, near Valley Eorge, the running-gears, body, iron work and materials for trimming and cover. As a part of the consideration the plaintiff was to pay the debt which his father had against Roudenbush. The plaintiff further testified that about the 20th February 1871, he settled with Roudenbush for the wagon, and that there was due on account of it a less sum than the debt due to his father, and that he subsequently paid the residue to his father, but had not taken the wagon from the shop when it was levied on.

If the jury should find this alleged statement of facts to be true, we think it takes the question of legal fraud out of the case.

There had been such an exclusive and long-continued possession of the property in the plaintiff, that his title could only be affected by actual fraud. There had been an open, visible change of the possession of the property. When Roudenbush moved out of the county, the plaintiff had accepted it. After retaining it in his exclusive possession for some six months, the fact that, under a new contract, the plaintiff placed the unfinished wagon in the possession of the former owner to be finished, is no fraud in law on the creditors of Roudenbush. The jury should be permitted to pass on the good faith of the whole transaction under proper instructions from the court: Dunlap v. Bournonville, 2 Casey 72; McMarlan v. English, 24 P. F. Smith 296. The third, fourth and fifth assignments are sustained.

As we are not furnished with a copy of the record referred to in the first assignment, we are not able to say there was error in its rejection.

The evidence covered by the second assignment is irrelevant.

Judgment reversed, and a venire facias de novo awarded.