39 Pa. Super. 308 | Pa. Super. Ct. | 1909
Opinion by
John Snesker for ten years conducted a restaurant in the building owned by John Becker. In 1906 the license was issued to Becker, but Snesker remained in possession as tenant and conducted the business, so it is claimed, as Becker’s manager. He and his family, consisting of his-wife and daughter, occupied such part of the building as was not used for saloon purposes as a residence. It is alleged that on August 25, 1906, Snesker sold to the plaintiff, who was about to marry his daughter, all of the household goods, the bar and bar fixtures and appliances and barroom furniture for the sum of $100. At this time the plaintiff was in the insurance business and lived on another street. In the following month he married Snesker’s daughter, and on September 8 or 9, upon returning from their wedding trip, they took up their residence with Snesker, bringing with them some furniture they had bought in New York. The plaintiff continued in his former employment and Snesker continued to conduct the saloon. The latter had a house servant whom he retained, and so far as appears no change was made
There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title to chattels by the act of the owner that shall be valid against creditors: Barlow v. Fox, 203 Pa. 114. It is nevertheless true that in the later cases the rigor of the rule laid down in the earlier cases as to what will be a sufficient delivery, and as to what evidence will be sufficient to carry that question to the jury, has been relaxed. In one of the latest cases on the subject the rule was thus stated by Mr. Justice Brown: “When a purchase is made in good faith, the fair and honest purpose of the vendor and vendee will not be defeated, if the conduct of the parties shows that there was an intention to transfer the possession as well as the title and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership:” White v. Gunn, 205 Pa. 229. Applying this principle to the evidence adduced by the plaintiff relative to the goods which he claimed to have bought from John Snesker, we are of opinion that a finding by the jury that there was such assumption of control of the property by the vendee as ought reasonably to indicate a change of ownership would be wholly unsupported. This being so, it was the province of the court to declare as matter of law that there was no such delivery of possession as would make the alleged sale valid as against the creditors of the vendor: Hastings v. Sproul, 10 Pa. Superior Ct. 82.
Of course, if it appeared that the furniture bought by the plaintiff in New York was included in the levy and in the issue
The judgment is affirmed.