215 Pa. 475 | Pa. | 1906
Opinion by
This controversy concerns none but the parties to it. The contract as they themselves made it, must determine their respective rights thereunder. The Cincinnati Equipment Company, plaintiff in the case, by written articles of agreement— we follow the language of the instrument — leased and demised unto the defendants sixty-nine 9/100 ton of 2240 rails, with three sets of frogs and switches; one industrial iron works steam shovel, and thirty dump cars; the rent therefor to be paid as follows : $2,000 cash, two notes, each for $1,609.30, and one for $1,599.30, maturing at different periods, aggregating the sum of $6,817.90, the total value of the material leased. The contract provided that said notes being paid, for the further consideration of $10.00, the Equipment Company would sell all said material to the lessees; but in case of failure to pay any of the notes the equipment company should have the right to take possession of the same wherever it might be. Default in payment of the notes having occurred, the lessors, by writ of replevin, recovered all the leased articles ; but upon trial of the issue joined, the learned presiding judge, distinguishing between the several articles embraced in the contract, held with respect to the rails, that the contract gave plaintiffs no right to recover them in any event; that with respect to these the contract was one of sale and not of lease, and directed a verdict for the defendants for the value of the rails as fixed by the contract. This ruling of the court is assigned for error, and it is the only matter for our consideration. The contract first recites what is leased, enumerating the items we have given above, and fixing a valuation on each. Thereafter in the contract these are repeatedly referred to collectively as “ said equipment,” in such a way as to make it very evident
We are unable to find anything in the contract that indicates an intention to distinguish between any of the articles so far as - concerns the right to recover the same in case of default. The rails were leased, just as were the other articles enumerated, and the plaintiff’s rights with respect to them were the same.
The case presents no other question than that considered. Plaintiff’s first point which called for binding instructions to the effect that under all the evidence in the case the verdict should be for the plaintiff, should have been affirmed.
Judgment reversed and judgment for plaintiff ordered.