Heilman v. McKinstry, Appeal, No. 120

Appeal, No. 120 | Pa. Super. Ct. | Jul 25, 1901

Opinion by

Beaver, J.,

The motion to take off a voluntary nonsuit is an appeal to the discretion of the court. Whether or not the discretion of the court was properly exercised in this case in taking off a voluntary nonsuit suffered by the plaintiff is immaterial in view of the final disposition of the case.

This order was not final and no appeal from it would lie, hence the appeal within the statutory period after final judgment was entered would raise the question of its validity, although the date of the appeal was more than six months after the date of the order.

The other assignments of error, however, raise a more serious question. In order to sustain replevin, it is incumbent upon the plaintiff to show not only the title to the property but the right of immediate possession thereto. The entire testimony in the case is that of the plaintiff. Taken together it shows that the piano and sewing machine, taken by virtue of the writ of replevin from the possession of the defendant, belonged to him, the plaintiff, had been placed in the hands of the defendant by the plaintiff’s agent under a bailment and were so held at the time of the replevin. The testimony further showed that the plaintiff had received as payment an organ, for which he gave a credit of $90.00 ; cash, $34.25 and other items amounting to more than $40.00. Having shown this, it was incumbent upon the plaintiff to show further that there was a breach of the contract of bailment on the part of the defendant, before he would be entitled to the return of the property. This, is nowhere shown in the testimony, nor is there any attempt to show it. The statement of the plaintiff that no one else had a right to the piano and the sewing machine, except himself (although not objected to by the defendant) is no evidence of title or the right of possession. It was the statement of an opinion or a legal conclusion — not of a fact — and was not conclusive of anything.

The complaint of the court below “ that the counsel have not sufficiently developed the facts ” was well founded. It should not have been difficult to lay the ground for secondary evidence as to the contents of the contract of bailment and a failure to comply therewith, if there had been such failure, which if shown we take it would have entitled the plaintiff to the possession of the property taken by the replevin. There was not sufficient evidence to warrant the submission of the case to the jury.

Judgment reversed.