Goss Printing Press Co. v. Jordan

Opinion by

Mr. Justice Mitchelb,

This case hinges on the question of delivery. The first contract was beyond dispute one of sale, and although the title would not have passed between the parties until full performance of the conditions, yet after delivery it would have been conclusively held to have passed in favor of creditors of the vendee. Equally beyond dispute, the second contract was one of bailment in which the title did not pass at all as against the bailor, either in favor of the bailee or his creditors. The question therefore is whether the circumstances under which the second contract was made were such as to deprive it of the force and validity it would have had if it had been made in the first instance. And of these circumstances the controlling one is whether or not there had been a delivery. If there had been, then all our cases agree that without further change of possession, it was too late for any change of their contract by the parties to affect the rights of an execution creditor. If on the other hand there had been no delivery the contract was entirely executory and could be changed at will by the parties.

Delivery does not consist in the mere transfer of location or custody of property. There must be the mind of both parties concurring in the transfer in accordance with the contract, the intent of one to deliver and the other to receive. Thus custody obtained surreptitiously or by trick or fraud does not amount to delivery, not merely because fraud vitiates everything into which it enters, but because there is no meeting of the minds of the parties. If. goods be bought in a store for cash, and wrapped up and handed across the counter to the purchaser, there is no delivery unless the money is paid, and so even if the goods are sent to the purchaser’s home in charge of a clerk who is to get cash on delivery, merely handing them to the purchaser to unwrap for examination will not be delivery. “ In order to make a sale which is conditional as to tho parties, absolute as to creditors, there must be a delivery of the goods in pursuance of the contract, for without this there can be no present sale, and an agreement of sale without an accompanying transfer, amounts to nothing more than a contract to sell at a future time, or upon the fulfillment of stipulated conditions. Furthermore, the delivery of possession alone though a material indicium of ownership does not of itself constitute a sale, for the goods may be delivered in bailment, as in loan or hiring. There must in addition to the possession, be at least such a conditional or qualified title passed to the buyer as to give him a transferable interest in the chattels : ” Edwards’s Appeal, 105 Pa. 103.

The fact that the original intention of the parties was to make a sale, and that such was the legal effect of their first agreement, does not prevent a change while it is still executory into a bailment with an alternative of future conversion into sale on compliance with stipulated conditions. That was decided in Rowe v. Sharp, 51 Pa. 26, a leading case and the first of importance in this court requiring the construction of the so-called “ leases ” now in common use which are intended as contracts of bailment though looking to an ultimate sale. It is a case which though sometimes thought to be on the border line has never been qualified or pared down. The principal cases on this subject were very recently reviewed in Brown Bros. v. Billington, 163 Pa. 76, in which Rowe v. Sharp was reaffirmed and followed both on principle and on its facts. “ The purpose of the parties was to effectuate a sale in the future directly to the bailee, who was to have actual possession in the meantime under a different arrangement, and we gave it our sanction as against creditors of the bailee because of the contract. In other words, although the intent of the parties, and the effect of their agreement, was to vest the title at a future day in the purchaser, he having actual possession in the meantime, yet as the intervening arrangement was upon a valid contract of bailment as between the parties, the title of the bailor was preserved until terminated by compliance with the provision for a sale, at which time that portion of the agreement became operative:” 163 Pa. 76.

The most important of the prior decisions were discussed by our brother Green in that case, and it is not necessary to go over the ground so thoroughly covered by him. Two cases of later date have been cited, as to which a word may be said. In Com. v. Harmel, 166 Pa. 89, a contract in form, of a lease was held to be a sale upon the express finding of fact on a summary conviction that it was a sale, and that the form was a colorable attempt to evade the peddler’s act of 1830. And in Ott v. Sweatman, 166 Pa. 217, the cases were very ably reviewed by Jenkins, J., in the court below, whose opinion was adopted by this court. But there the second contract on which the bailment depended was not made until after essential portions of the machinery had been delivered and paid for under the original contract of sale. If the same crucial fact of delivery exists in the present case, then as already said, the same result will follow.

In the light of these principles, was there a delivery under the first contract ? That contract contemplated a formal acceptance and a cash payment of $6,500, after a thirty days’ trial had proved the press to be in accordance with its requirements. These acts were to be concurrent. The vendor could not make delivery and demand acceptance till after trial, and the purchaser could not demand delivery at any time without a tender of the money. Under such circumstances the transfer of the press to Harrisburg, and setting it up in the purchaser’s building was certainly not a delivery as matter of law, for neither party intended it as such. On the contrary it was prima facie only a necessary step for the trial which was to precede delivery and acceptance. That could only be had in Harrisburg and therefore the press was brought there under the explicit terms of the contract for that purpose in the first instance. All the other facts, such as the shipping of the press with bill of lading naming the Harrisburg Telegram as consignee, the acts or sayings of the Goss company’s men during the trial, etc.,- are comparatively unimportant, for they must be considered in connection with the intention of the parties and in subordination to the requirements of their contract. If what was done with the press up to the time of the second contract was merely carrying out the preliminary trial which was required by the first contract, and there was no delivery or acceptance until after the making of the second contract, as the testimony of W. F. Jordan himself seems to indicate, and the second agreement was made because of Jordan’s inability to comply with the terms of the first, then as the second was an unquestionably good contract of bailment, the delivery under it passed neither title nor possession to the bailee, which was subject to levy by his creditors. But if on the contrary after the trial was completed both parties agreed to a delivery and it was actually made under the first contract, and the second was an afterthought merely to secure the payment of the price to the Goss company, then as against the execution creditor such agreement was ineffectual. These are questions of fact which should be submitted to the jury under instructions in accordance with the foregoing views.

Judgment reversed and venire de novo awarded.