Lamb v. Leader

Opinion by

Beaver, J.,

The paper-book of the appellants violates two rules of this court. Bule 16 provides that “ when the error assigned is to the charge of the court or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment.” The observance of this rule was all the more important in this case for the reason that instead of printing the charge of the court immediately preceding the assignments of error, as required by Rule 26, it is printed in the appendix after the testimony. The court below charged, as a matter of law, that the plaintiff was entitled to a verdict, leaving to the jury to determine the value of the property in controversy. This is practically the only error assigned.

The appellants succeeded to the ownership of certain personal property leased by an agreement in writing by Lamb, the appellee, to Leader & Colt, to which was attached a schedule of the personal property leased, including an engine which is admittedly the property in dispute. ’This engine is scheduled as being “ subject to a payment of a balance in cost $350.00.” The only rental stipulated to be paid for the use of the articles in said schedule mentioned was $1,180. By the terms of the agreement the lessees had the privilege of discharging obligations for Avhich the lessor was liable to an amount not exceeding $500. There is no allegation, so far as we can find in the testimony that the lessee paid any portion of the rent. The possession of the engine in controversy in this case was secured by the appellants from Leader & Colt who secured the possession thereof from the appellee by virtue of the lease above referred to. The appellants allege, however, that the engine was leased from the Campbell Printing Press Company and held by the appellee as a bailment subject to certain unpaid instalments; that the Campbell Printing Press Company replevied the engine in their possession and that they purchased it from said company. The testimony in regard to this transaction was extremely vague and unsatisfactory.

The agreement, if there were any, under which the appellee held the engine from the Campbell Printing Press Company, was not offered in evidence, nor was there any competent testimony as to the terms of the bailment, if such it was. It plainly appears by the testimony that the engine, when replevied by the Campbell Printing Press Company was never actually delivered to them, that it remained in the possession of the appellants after the replevin as it was before, and that the appellants paid the balance due upon the engine and had the action of replevin marked “ discontinued.” It is quite evident that the possession of and whatever title to the engine the appellants had prior to the action of replevin was acquired through the lease between the appellee and Leader & Colt. Whatever title, therefore, the appellants secured from the Campbell Printing Press Company they were bound to hold in trust for the appellee; and, inasmuch as no rent was ever paid by Leader & Colt, as distinctly admitted by Mr. Leader in his testimony, and there was consequently money in their hands out of which the balance due the Campbell Printing Press Company could have been paid, we cannot see that the appellants had any title, either legal or equitable, to the engine which was the subject of this replevin. The view taken by the court below seems to have been correct, so far as we can gather from the facts as they appear in the testimony, and the judgment is therefore affirmed.