Ayers v. McCandless, 147 Pa. 49

Ayers v. McCandless

147 Pa. 49 | Pa. | 1892

Per Curiam,

We are of opinion that the change of possession of the lumber in controversy was all that was reasonably necessary and practicable, under the circumstances.

The plaintiffs are wholesale dealers in lumber, with their place of business at East Saginaw, in the state of Michigan. The two carloads of lumber in question were sold and shipped by them to H. Bauer & Brother, of Millvale, Alleghenj1- county. Bauer & Brother, being unable to pay for the lumber accord*54ing to the contract with the plaintiffs, the latter came on to Millvale, and after an interview with Bauer & Brother, the contract of sale was canceled, and the lumber redelivered to plaintiffs. In pursuance of this arrangement, Bauer & Brother executed and delivered to the plaintiffs the following paper: “ The within bill of lumber is now piled in our yard, and mill, and we hereby return the same to E. R. Ayers & Co., and we deliver up possession of the said lumber to them, and agree to hold for them in our yard and mill, subject to their order.” Each pile of said lumber was then marked “ E. R. Ayers & Co.”

There was some confusion as to whether it was marked “ E. R. Ayers & Co.,” or “Ayers & Co.,” or “This is the property of Ayers & Co.; ” but we do not consider this as material, as either mark would have been sufficient to indicate that the lumber belonged to the plaintiffs. After the lumber had thus been retransferred to them and marked as before stated, the plaintiffs returned to their place of business in Michigan, having first arranged with a Mr. Kline to resell it for them.

Were the plaintiffs bound to do more than this? It would be unreasonable to hold that they must re-ship the lumber back to Michigan. They had no place of business in Pittsburgh to which they could order it to be removed. Besides, lumber is a heavy article, and its removal from one place to another is attended with considerable expense. The plaintiffs did all that could reasonably be expected of them, in having it piled separately and the piles marked with the name of their firm. This is in harmony with our cases upon this subject. In Cessna v. Nimick, 113 Pa. 70, it was held that “a change of the location is not in all cases necessary to constitute a valid delivery of a chattel as against creditors. Due regard must be had to the character of the property, the nature of the transaction, the position of the parties, and the intended use of the property.”

Judgment affirmed. C.