127 Pa. 309 | Pa. | 1889
Opinion,
The only question in this case was whether the machinery in controversy was personalty or realty. The question was very fairly and correctly submitted by the court to the jury who found it to be personalty. There was conflicting evidence on the subject, and it is clear that the determination of the issue depended upon a question of fact which could only be decided by a jury.
The machinery in dispute was a certain steam engine and
The learned court below was very careful to say to the jury that if the character of the mill for permanency was certain, the mere intention of Kilburn to the contrary could not change it and make the machinery personalty. But we think it quite clear upon the testimony that the character of the mill for permanency was a very debatable question, and that the intention and object of the owner became very material in determining the question. In this point of view the evidence offered and received under objection and exception was highly illustrative. Thus, the witness, A. W. Day, the tail-sawyer at the mill, testified under exception as follows: “ Q. What kind of a mill was it ? A. It was a movable mill. I suppose the engine and boiler hung together, but it was movable and intended to move
The foregoing is the testimony, the admission of which is complained of in the two assignments of error in this case. We see no error in its admission. It was directly upon the very point in controversy, and indicates with much force and directness the very purpose of the owner to put in portable machinery. It has the additional force of a communication of this purpose to the plaintiff himself and would be admissible for that reason. In view of the very conservative and cautious character of the charge of the court, it was not possible for the jury to be misled as to the precise question to be determined, and the considerations to be taken into account by them.
Judgment affirmed.