83 Pa. Super. 439 | Pa. Super. Ct. | 1924
Argued May 8, 1924. The matter came before the lower court in the form of a feigned issue resulting from the application to the sheriff for an interpleader on the part of the Bank of Secured Savings who claimed to be the owner of a motor *441 truck which had been levied upon as the property of W.F. Leasure. At the trial binding instructions were given in favor of the plaintiff, but afterwards judgment was entered for the defendant non obstante veredicto. The facts are as follows: Leasure obtained a motor truck from the Manchester Auto Machine Company. The first paper in the transaction is in the form of a written order which was as follows: "Gentlemen: Please enter my order for one 3 1/2 ton Atterbury Truck #5735 to be delivered on or about soon as possible, one week
Price $ Chassis freight and Tax ................... 4150.00 Body and painting ......................... 250.00 Columbia Hand Hoist ....................... 150.00 F.O.B. Pittsburgh, Pa., on which I hereby deposit $........... which I agree to forfeit if truck is not taken. Ins. Int., Fire, theft Collision one year $50.00 deductible .................... 423.34 -------- 4973.34
The title to Truck shall remain in you until purchase price is paid in full. Following cars to be taken in trade as part payment: Overland five passenger touring car in running order .................. $300.00 Ford one ton truck in running order 450.00 Ninety day note, endorsed by Mr. Barr .............................. 500.00 -------- 1250.00 -------- 3723.34
Balance $3723.34 covered by lease and 12 notes [one note for the entire amount was given] with Republic Mortgage Company to be paid off within one year from *442
date of delivery of Atterbury truck. It is understood there are no representations or agreements not mentioned in this order." This was followed by a lease agreement which had a printed notation on the top: "to be used in connection with Time sales in Pa., N.J., and Ill." It purported to be a lease at a certain rental. The list price of the motor car is given at $4,550 and the value is $4,973.34; for the use of this car the lessee paid $1,250 as the first installment and agrees to pay $310.37 each recurring month for twelve months after date with interest at the rate of 6% and lessee gave a promissory note maturing on the due dates of the respective installments "not as payment, but as evidence of the amounts to become due hereunder." The paper further provided "at the expiration of the term of the lease, lessee should surrender the machine in good condition and if he does not do so the lessee may at his option purchase same upon the further payment of $1 provided all the conditions of the lease have been complied with." The paper contained the usual clauses that are found in such contracts, provision for insurance against loss by fire or theft; title shall remain in the lessor, etc. Then follows this clause: "Upon default by the lessee with respect to any rental payments, principal or interest, or if said machine is removed or attempted to be removed from the state in which buyer now resides or to be otherwise disposed of, or if buyer shall sell or encumber or shall attempt to sell or encumber said machine, or in case of misuse or abuse thereof, or whenever the seller or his assigns, shall deem the debt insecure, then the holder of any note then unmatured may, at his option, declare said note immediately due and payable." It further provided: "Upon any default in payment of any installment of rental, or upon breach of any condition or covenant the lessee must deliver the machine to the lessor and should he fail to do so, the lessor shall have the right without notice or demand to terminate the lease and to take possession of the machine wherever found and shall retain all payments *443
made by lessee for the violation of this agreement, and for loss in value of machine or rental thereof. The lessor may enforce payment of said note, and no suits or legal proceedings shall be deemed any waiver of said right of lessor to so take possession." Was this a bailment or a conditional sale? As we approach the question, the words of Justice SCHAFFER in Root v. Republic Acceptance Corp.,
The lower court seemed to be in some doubt as to this branch of the case and decided in favor of the defendant upon the theory that the Manchester Auto Machine Company, the original party to the transaction, had parted with its title and the property rights vested in Leasure. The facts chronologically stated are, that on December 30, 1919, the Manchester Auto Machine Company assigned the note to the Republic Mortgage Company and guaranteed payment and assigned the agreement to the same company. The Republic Mortgage Company endorsed the note to the Colonial Finance Company. The date fixed for the final payment of the note was December 30, 1920. Payment was not made until January 7, 1921. On that day the Manchester Auto Machine Company gave Leasure the money to pay the note to the Colonial Finance Company, who stamped the lease and note as paid and returned them to the Manchester Auto Machine Company. February 17, 1921, the Manchester Auto Machine Company by bill of sale sold the truck to the Bank of Secured Savings for the consideration of $1,577, the balance due on the purchase price and a note for a slightly higher amount signed by Leasure and endorsed by the company was discounted by the bank proceeds to the credit of the machine company, and on the same day the bank executed a lease for the truck in that sum payable 30 days thereafter to Leasure. Several payments on the note were made, and renewals had, the amount being reduced to $1,000. This balance of $1,000 was paid by the Machine Company, the bill of sale and note were returned to it. The lower court took the position that when the original note and lease were marked paid by the Colonial Finance Company, the title vested in Leasure. Whatever merit there may be in this position, we prefer to *446 base our judgment upon the language employed in the original contract. We think it discloses a conditional sale.
The judgment is affirmed.