53 Pa. 322 | Pa. | 1867
The opinion of the court was delivered, by
The two agreements of 28th May 1863, which are to be taken together as constituting only one, define and regulate all the rights of the parties that are litigated in this suit. Beyond all doubt, Corbett acquired an equitable estate in the lands, mills, &c., to be perfected by a conveyance of the legal title to an undivided third of the premises at such time as he should have manufactured, in the manner provided, and delivered to Lewis & Nelson, boards and shingles sufficient to pay the cost of saw-mills and manufacturing. But, until that time arrived, Lewis & Nelson were to have full and entire control of the sale of said lumber.
Now, this action of replevin is founded on the assertion that Corbett had not attained the limit prescribed in the agreements, was not, therefore, entitled to a conveyance of title to a third of the premises, and yet, that instead of delivering the lumber to
To this the plaintiff in error has no right to object, for it gave him a chance, in this action, to satisfy the jury that he had paid for his third of the land, and if they had found the fact so, the consequence would have been fatal to the plaintiffs’ action, for then Corbett, having performed his part as a purchaser, would have been entitled to his deed, would have been a tenant in common, the exclusive right of sale in Lewis & Nelson would have
The court is complained of for submitting, without evidence, the question whether Corbett was intending and endeavoring to sell the lumber short of the Pittsburgh market, but even if well grounded, we see no force in the complaint, because Lewis & Nelson’s right of sale was absolute and exclusive upon the agreement, and did not need to rest upon an ascertainment of the fact suggested. Corbett bound himself to deliver at Pittsburgh, but that was for their benefit, and they might waive their rights ánd demand delivery above Pittsburgh. It was like a power revocable at the pleasure of the principal, or like a bailor demanding possession of his own goods in transitu. If Lewis & Nelson found out a better market than Pittsburgh, the agreement permitted them to avail themselves of it, though if Corbett had already incurred the expenses of running to Pittsburgh he would be entitled to them in his account with Lewis & Nelson.
It is argued that if the lumber had been levied on as Corbett’s property, either at the mill, or while in transit, a sheriff’s sale would have passed a good title, and for this the case of Mitchell v. The Commonwealth, 1 Wright 187, is relied upon. That was not a case of bailment, at least it was not so stated, but of a lease that amounted to a purchase of the goods, and it was said they would be liable to levy and sale in the hands of the purchaser, though he had not paid for them, but here, upon our construction of the agreement, Corbett, though holding an equitable interest in the lands, was to have no property in the timber severed from the freehold until he had manufactured enough, at the specified rates, to reimburse the capitalists their outlays. The manufactured lumber must have been the exclusive property of Lewis & Nelson, else they could not have the “ full and entire control of the sale of it.” What Corbett had in it was a right to charge the specified prices against their advances. His labor mixed with the lumber was to be compensated in this manner, but the property in the lumber, until advances should be reimbursed, was in Lewis & Nelson, and not in him, and, therefore, we cannot admit that a sheriff’s levy or sale of the lumber as his property, would have passed any title whatever.
The only remaining assignment of error relates to that portion of the lumber which was manufactured out of timber not grown upon the plaintiff’s lands, but the only ground of complaint here is that there was not evidence to raise the question which the
But there was a part of the charge which covers this lumber, that is not assigned for error. It was the part that related to the confusion of goods. Now if the jury failed to find evidence that Corbett acted as agent for Lewis & Nelson, in buying lumber from other lands than theirs, to be manufactured at their mill, and so found him to be the owner of such lumber, yet if he confused and mixed it with theirs, and made his boards undistinguishable from theirs, the instruction was that he would lose his property, and this is not assigned for error.
Whatever the mistake in submitting the question of agency without adequate evidence, here was a view of the case, acquiesced in by the plaintiff in error, which justified the jury in finding a verdict against him.
On the whole, therefore, we find none of the errors sustained, and accordingly the judgment is affirmed.