DocketNumber: Appeal, No. 225
Citation Numbers: 42 Pa. Super. 429
Judges: Beaver, Head, Henderson, Morrision, Morrison, Orlad, Porter, Rige
Filed Date: 4/18/1910
Status: Precedential
Modified Date: 2/18/2022
Opinion by
In the winter of 1903 and 1904, W. E. Clark purchased a secondhand traction engine and took possession of it. In March, 1907, he sold and delivered it to Hockenberry and Decker for $800 and they kept it for about six months, when they resold it to Clark for $600. It was then on the premises of George Weicht, about five miles from Clark’s'home, and he was to get the engine at Weicht’s. But in fact he did not remove the engine from that place. In November or December, 1907, the engine being out of repair, Clark leased it to Wallace & Garlick; they were to put it in repair and to have the use of it at $1.00 per day for each day that they actually used it till they were fully repaid for the expense of the repairs which they should put upon the engine. These lessees took the en
We find in the record fourteen assignments of error, but it will not be necessary to discuss them seriatim. When it is recalled that the engine had been out of the possession of Clark since March, 1907, and that there was ample evidence at the trial from which the jury could find that the sale by Clark to appellees on March 10, 1908, was bona fide and for a fair and
In Linton v. Butz, 7 Pa. 89, it is decided as stated in the syllabus: “A sale of personal property in the hands of a bailee is good against an execution creditor, though there be no actual delivery, if the vendor does not retake possession. And so if the vendee takes possession and leaves the property with a former bailee for a special purpose.” That case is cited and followed in Stephens v. Gifford, 137 Pa. 219. It is again cited and followed in Caulfield v. Van Brunt, 173 Pa. 428.
In Worman v. Kramer, 73 Pa. 378, it is held as stated in the syllabus: “A sale of goods in the hands of a bailee is good against an execution creditor, if the vendor do not retake possession.” To the same effect is Woods v. Hull, 81* Pa. 451. We think these authorities, as well as others that might be cited, effectually dispose of the appellant’s contention that-the court ought to have pronounced the sale of the engine fraudulent in law.
Now let us see what the learned court did submit to the jury. We think he very fairly and adequately submitted to the jury the following questions: Was there fraud in fact? Was the sale bona fide? Was the price a fair one? Was such possession of the property taken and such acts of ownership exercised by Gump & Sons as could reasonably be expected, considering the location and character of the property, its position, condition and circumstances attending the sale? Had the vendor leased the engine to Wallace & Garlick? Did the lessees surrender the engine to the lessor, or was the possession of the
At first blush we had some question about the correctness of the learned court’s unqualified affirmance of the fourth and fifth points (eleventh and twelfth assignments of error). The affirmance of these points placed the burden on the defendant of proving actual fraud. If in presenting the plaintiffs’ case, evidence had been produced from which the jury could have found actual fraud, then we would feel bound to sustain the eleventh and twelfth assignments. But we have reached the conclusion that the plaintiffs’ evidence tends strongly to sustain their title and if the jury could find fraud in fact, it must come from the defendant’s showing and theory of the evidence. With this view of the case we are not prepared to hold that the court erred in affirming the fourth and fifth points.
Considering the sale of the engine in the present case to the appellees in the light of all the circumstances disclosed by the evidence, it surely bore the appearance of bona fide sale and in such a case, “ Fraud is not to be presumed without satisfactory proof of its existence; which can scarcely be affirmed where a proper motive exists, which might as readily have been the operating motive as one that was fraudulent.” Agnew, J., in Bear’s Est., 60 Pa. 430. See also Lasher v. Medical Press Co., Ltd., 203 Pa. 313, and cases therein cited.
While fraud is not to be presumed, yet it can be inferred
The doctrine of the latter case has been followed in a large number of cases both in the Supreme and Superior Courts. In Com. v. Erie & Pittsburg, R. R. Co., 74 Pa. 94, Agnew, J., said in delivering the opinion of the Supreme Court: “A corporation, as well as an individual, is entitled to the ordinary presumption of rightful action until the contrary is shown.”
It is a well-settled rule of law that there is a presumption against fraud, coven, vice and immorality. In Winlack v. Geist and Thomas, 107 Pa. 297, Mr. Justice Green, for the Supreme Court, said: “On the contrary, we think with the learned court below, that when a man does an act, the presumption, in the absence of evidence otherwise, is that he acted rightfully and not wrongfully. This does the defendant no harm. He is at perfect liberty to disprove the presumption and show by any sufficient testimony that it does not apply in the given case.” See also Mead v. Conroe, 113 Pa. 220; Whitman v. O’Brien, 29 Pa. Superior Ct. 208, and authorities therein cited. In the light of these authorities and many others we are of the opinion that the court did not err in affirming the fourth and fifth points.
We also think that the court was warranted, under the evidence, in affirming the plaintiff’s seventh point, thirteenth assignment. We see no merit in the fourteenth assignment
The appellant complains of the action of the court in reserving decision on the points asking for a binding instruction that fraud in law had been established. Also in refusing judgment for the defendant non obstante veredicto on the same ground. We are unable to see how reserving the decision, as to legal fraud, injured the appellant. We have found that legal fraud had not been shown and if the court had so decided at the trial, by refusing appellant’s points on that question, it doubtless would have lessened the chances of obtaining a verdict that there was fraud in fact. The jury had nothing to do with the question of fraud in law, and it was entirely proper for the court to reserve that question till after the verdict came in as to fraud in fact. If the jury had found fraud in fact, as they might have done under the charge, the court would have been relieved from deciding the question of fraud in law, because if the sale was in fact fraudulent, the appellees’ title was bad and the verdict and judgment must have gone in favor of the appellant. The whole question of fraud in law necessarily came before the court on the motion for judgment non obstante veredicto, and the refusal of such judgment and directing judgment on the verdict (the jury having found no fraud in fact), was a legal and orderly disposition of the reserved questions.
Upon the facts in this case we think it would have been error for the court to have directed a verdict in favor of the appellant on the ground of legal fraud. In our opinion, the case was well tried, and the assignments of error are all overruled, and the judgment is affirmed.