Croft v. Jennings

173 Pa. 216 | Pa. | 1896

Opinion by

Mr. Justice Green,

The leading and most important facts in this case are entirely undisputed. It is not at all controverted that Croft who had been in the employment of Livingston & Co. for a long time had a perfectly legitimate claim against that firm of about $600, for wages, and for $200 of that ‘amount he was entitled to a lien against their goods. On and before April 18, 1887, John F. Jennings held a judgment against Livingston & Co. for $40,000 and an execution for $24,416 had been issued. On the last date W. H. Burt, who was a liquidating partner of Livingston & Co., made a bill of sale to Croft of a lot of patterns to secure his claim for wages. This bill of sale was approved, and so marked on the bill, by W. K. Jennings the attorney for J. F. Jennings in the execution proceedings. The patterns sold to Croft were at the shops of Livingston & Co. and were a part of a large stock of patterns used in their foundry business, which was conducted in a building on Washington avenue, and they were left there in charge of Mr. Burt, the liquidating partner. After the bill of sale to Croft was made, the execution in favor of J. F. Jennings was stayed, and on April 28, 1887, Livingston & Co. made a transfer of all their stock of patterns at the shops to J. F. Jennings. On June 13,1887, B. F. Jennings as attorney in fact for his father, J. F. Jennings sold, for the sum of $5,000 all the patterns in the shops including those already sold to Croft, to the Enterprise Hardware Company. This bill of sale was prepared by Burt who had made the previous bill of sale to Croft, and who said when he was asked why he included the patterns he had already sold to Croft, that he supposed that Croft’s claim had been settled. There is no doubt also that the Enterprise Hardware Company took possession of all the patterns including those previously sold to Croft, and that Jennings received the full consideration for them. The sale to the Enterprise Hardware Co. was made on June 13,1887, which was less than two months after the sale to Croft. It seems to us that the question whether that sale of Croft’s patterns was made inadvertently was an entirely immaterial question. The fact of the sale established a conversion and no demand was necessary in order to sustain a recovery. The learned court below left to the jury the question whether Jennings intended to sell the Croft patterns when he made the sale to the Enterprise Hardware Co., charging that if he did not so intend the jury should return a verdict for the defendant. This was certainly as favorable an instruction as the defendant could possibly expect. But the jury found a verdict against the defendant and therefore -decided that the sale of the Croft patterns was intentional, and in view of the testimony of Burt their finding was entirely justified. We have then the clear case of one selling the goods of another in his possession, delivering the possession to the purchaser and receiving the purchase money to his own use. Why should not such a person be bound to pay to the true owner the value of the goods ? The objections to a recovery were of the most technical character and altogether untenable. The actual taking of possession by Croft was not at all necessary to maintain the action. There was no question of constructive fraud as against creditors of Livingston & Co. by retention of possession by the seller, in the case. The question is directly between the parties, and as to them Croft’s title was perfectly good under his bill of sale. In the case of Boyle v. Rankin, 22 Pa. 168, the facts were that two partners being indebted to another, assigned to bim a stock of merchandise, accounts, bonds, notes, judgments and accounts of the firm as a collateral security that they would give bim a bond and approved security for the debt within five days thereafter. It was beld that the assignment, though unaccompanied by possession, was valid as between the parties, and that the promised security not having been given within the time specified, no creditors having intervened, the possession could be enforced by an action of replevin.

In Janney v. Howard, 150 Pa. 339, we said, “A sale without delivery of possession divests the ownership of the vendor as between him and his vendee: Hetrick v. Campbell, 14 Pa. 263; and the purchaser may, if the possession be withheld, maintain replevin for the goods : Boyle v. Rankin, 22 Pa. 168.”

As this principle cannot be questioned a further citation of authorities is unnecessary. The plaintiff here became, by virtue of his bill of sale, the owner of the patterns as between him and his vendor, who was the defendant’s testator. When the latter sold the goods to a stranger, delivering the possession, he certainly made himself liable as a trespasser, and no demand was necessary to entitle the plaintiff to recover the value of the goods. We see no. merit in the assignments of error and they are all dismissed.

Judgment affirmed.