41 Pa. Super. 469 | Pa. Super. Ct. | 1910
Opinion by
On April 4, 1903, the plaintiff company proposed in writing to furnish, packed and delivered, f. o. b. cars, Ravenna, Ohio, to George W. Smith, a hoisting engine and certain accessories, in which writing it was provided that the title to this. property was to remain in the name of, and be the property of
On the trial it was properly held that the plaintiff’s right depended upon the construction of the agreement of May 5. The fact that the original intention of the parties was to make a sale, and such is the legal effect of their first agreement, did not prevent a change in the contract while still existing, into a
The proposition of April 4 became nugatory by the contract of May 5. While the earlier one was an accepted proposition, it was fully merged in the one of later date. The proceedings before the magistrate were so irregular that no title passed to the purchaser at the constable’s sale. The contract being one of bailment and not a conditional sale, no sale of this property as that of Smith would operate to divest the title of the plaintiff thereon. Smith having made default and the plaintiff promptly acting thereon, by taking possession of the property pursuant to the notice given by Smith, the bailment was terminated at that moment: Stiles v. Seaton, 200 Pa. 114.
The assignments of error are overruled and the judgment is affirmed.