Hill v. Leibig Manufacturing Co.

Opinion by

Beaver, J.,

In order to make a sale of personal property valid as against creditors of the vendor in Pennsylvania, there must enter into and proceed from the transaction, first, good faith — honesty of purpose; second, a valid and adequate consideration; third, an absolute and unconditional sale; fourth, actual, visible, manual delivery, or, in its absence, fifth, such a change of possession as the character of the property, the nature of the transaction, the position of the parties and the intended sale of the property make possible; sixth, continuous possession. All of these elements can be legitimately found in the evidence offered in the present case. As to the most of them there was practically no dispute. That which the appellant alleges to be wanting is a sufficiency in the change of possession or such a delivery as meets legal requirements. The title to the property in question was raised by a feigned issue under the Sheriff’s Inter-pleader Act between two creditors of a common debtor. The plaintiff claimed by virtue of a sale by the debtor and the defendant corporation by virtue of a levy made by the sheriff upon an execution issued by it. It is very clear that the debtor had no interest in the contest in any event, nor could he by any possibility derive any benefit from the result of the issue. His wife was, therefore, a competent witness. The testimony embraced in the bills of exceptions contained in the first, second, fourth, fifth and sixth assignments of error was all competent evidence, bearing directly upon the bonajides of the transaction and the consideration therefor. That the remark of the trial judge in the court below complained of in the seventh assignment of errors, was correct is found in the fact that the defendant at the trial voluntarily surrendered at least the one half of the articles levied upon. The slip of the trial judge in using the words “ judgment note ” instead of promissory note, as complained of in the eighth assignment of error, did the defendant no harm. The obligation was practically the same.

All the remaining assignments of error relate to the charge of the court, and its answer to points presented by the defendant. The appellant alleges that his first and second points were framed in the exact words, or taken substantially from the case of Brawn v. Keller, 43 Pa. 104. This is doubtless true, but a sufficient answer is found in the fact that the court answered them in substantially the language employed by the Supreme Court in Evans v. Scott, 89 Pa. 136, Crawford v. Davis, 99 Pa. 576, Renninger v. Spatz, 128 Pa. 524, in which the facts more nearly resemble those in the present case.

It is not necessary for us to enter into a discussion of the laAV of Pennsylvania upon this subject. We-have lately discussed it very fully in Weller v. Meeder, 2 Pa. Superior Ct. 488. It is not the intention of this court to depart by a hair’s breadth from what has been erroneously called the iron rule of the recognized leading case upon this subject in Pennsylvania, — Clow v. Woods, 5 S. & R. 275. The exceptions to the rule were clearly indicated by Chief Justice Gibson, when he said: “ The inclination of my mind is to give the statute (13 Eliz.) a liberal, perhaps an enlarged, construction, by putting the rule requiring a change of possession on grounds of public policy, and confining its exceptions to those cases where, from the very nature of the transaction, possession either could not be delivered at all, or at least without defeating fair and honest objects intended to be effected by, and which constituted the motive for entering into the contract.” We think the facts in this case bring it within the exception which has been universally recognized by our appellate courts, and are of the opinion, as expressed by the Supreme Court in Renninger v. Spatz, supra, “ that the learned judge did not err in refusing to hold as matter of law that the delivery of possession was insufficient. It was for the jury to find from the evidence whether the sale was in good faith or colorable, and whether the change of possession was all that could reasonably be expected of the vendor, taking into view the character and situation of the property and the relation of the parties.” This identical language was used, so far as it was applicable, by the trial judge in the court below, and is assigned for error. This is a case in which the language was strictly applicable. All the elements of a valid sale by Hilton to the plaintiff below being contained in the evidence, and being practically undisputed or found by the jury, to whom they were properly submitted, the judgment should be and is hereby affirmed.