11 Pa. Super. 15 | Pa. Super. Ct. | 1899
Opinion by
Under the terms of a contract in writing, the plaintiff delivered to one Dorrity a soda water apparatus and fixtures and at or about the same time took from Dorrity certain promissory notes representing the amount and maturity of the deferred payments mentioned in the writing, which is admitted to have been a carefully drawn contract of bailment. After paying some of the notes the property was sold by Dorrity or at a sale of his personal property to the L. H. Harris. Drug Company, which subsequently sold it to the defendant who had no knowledge of the plaintiff’s claim. The fountain was marked “Charles Lippincott & Co.,” but whether it was to indicate an owner or maker is not stated. An action of replevin was brought by the plaintiff against Dorrity and the defendant, which action at the trial was discontinued as to Dorrity and proceeded into a verdict, under the direction of the court in favor of the plaintiff for $240.70, this being the amount of the unpaid purchase, money with interest thereon due on the contract.
We are asked to decide that because the property was not delivered until Dorrity gave his notes for the deferred payments, they not being provided for in the original contract, that the transaction was a sale and not a bailment and that the case should have been submitted to determine that question. While there is some doubt as to when the contract and notes were signed, it is apparent that the contract was not executed until the delivery of the property and until the first payment was made. At that time the contract and the notes related to the same subject-matter, and in determining their effect, they are to be considered, in the absence of proof to the contrary, as made at the same time. The character of the transaction is to be ascertained by the contract thus made : Brown Bros. & Co. v. Billington, 163 Pa. 76. It is not contended that there was any change of intention in the minds of the parties as in Goss Printing Press Co. v. Jordon, 171 Pa. 474, and the giving of the notes is to be construed in aid of the contract as a convenience to facilitate the payment of the instalments as they fell due. They were constituent parts of one contract, as in Ditman v.
The judgment is affirmed.