Doverspike v. Jewart

Opinion by

Wickham, J.,

(after stating the facts as above set forth) :

Looking at all the evidence, there can be no reasonable pretense for contending that the appellant ever received actual or even symbolical delivery of either of the rafts. His name or mark was not on the logs ; no sign was put np to indicate that the ownership was not in W. T. Jewart. No one representing the appellant was ever in possession, and we may safely assume that if he had not paid W. T. Jewart, who seems to be impecunious, in advance by goods from his store and otherwise, it would have been hard to convince him that the stranded and broken raft, eight miles from the place of delivery, and the other not yet turned over to him, were his property and lying in the creek at his risk. Piad the logs been carried away by flood at any time before Charles Jewart’s purchase, it is not likely that the appellant would have been willing to shoulder the loss-; nor under the circumstances do we think he should. The appellant does not undertake to say when or where the passing of the title took place. Did each log become the appellant’s as soon as the ax struck the tree, or when the tree was felled, or when the log was hauled to the creek, or when it entered the water, or when in transit, or the moment it reached the mouth of the creek ? The appellant in his redirect testimony tried once to shift his ground and, by suggestion, to convey the idea that he was to have possession, somewhere in the creek above its mouth; but on further cross-examination he came back to his original statement as to the place of delivery. We do not think that simply running the timber to the point designated changed either possession or title. Something further had to be done, which never was done. It would be unreasonable to hold that, regardless of the height of the -water in the stream, threatening weather and the like, the vendor could claim a delivery by merely guiding the raft to the mouth of the creek, tying it up and then without notice to the appellant (and none was given in this case) deserting it. The appellant, himself, no doubt would be the first to deny any delivery, if this course had been pursued and the logs were swept away and lost.

We have not overlooked the alleged declarations of W. T. Jewart to third persons and to the appellant’s clerk, regarding the ownership of the timber. They perhaps amounted to little more than statements that he had agreed to sell to the appellant, and expressed the popular idea of the effect of such an agreement on the title to personal property. They are to be given due weight, but they cannot be allowed to overthrow incontestable facts and the appellant’s own story as to the contract.

But conceding that the title as between W. T. Jewart and the appellant had passed to the latter, still he would have no right, never having had possession, to take the timber from one who purchased it for a valuable consideration and in good faith. It is true an attack is made in the appellant’s printed argument on the bona fieles of the transaction between the Jewarts, but it is not sustained by anything in the evidence. Admitting that W. T. Jewart was dishonest in his conduct towards the appellant, this does not change the legal status of the case. Had Charles Jewart issued execution and sold the rafts thereon, it would have been the duty of the court below, on the evidence before us, to set aside a verdict if found against him on an issue involving the validity of his judgment. Mere suspicion is not proof, nor can it be allowed to take its place in a legal proceeding.

The decision in Dougherty v. Haggerty, 96 Pa. 515, in which the circumstances were very similar to those of the case at bar, we think presents the rule which should govern here.

The allegation made in the appellant’s argument that Charles Jewart was not a purchaser for value, because he took the timber in payment of an antecedent debt, needs no discussion. Had he accepted the rafts as collateral security for his debt, and not as a pro tanto satisfaction thereof, the appellant’s allegation might be correct. As the matter stands, however, it is untenable. The rule requiring change of possession to accompany a sale of personal property is for the benefit of creditors as well as purchasers, and it is .immaterial whether a creditor secures, the payment of his debt through an execution levied on the debtor’s goods or with the consent of the latter acquires in a less roundabout and expensive way property to satisfy his claim.

The learned judge of the court below committed no error in instructing the jury to find in favor of the defendant.

Judgment affirmed. •