Long v. Knapp

54 Pa. 514 | Pa. | 1867

The opinion of the court was delivered, by

Agnew, J.

The charge of the learned judge of the Common Pleas contains a correct statement of the law applicable to the case. The agreement of February 6th 1863, between Kellogg and Knapp, for the sale of the pine lumber manufactured by Kel-' logg at Foulk’s mill, was executory. But the bill of sale from Kellogg to Knapp of the 11th of March following was an absolute sale for payment in full. The purpose of the sale was the payment of a debt to Knapp, and the parties estimated the quantity of lumber. The count to be made afterwards was not a condition of sale precedent to delivery and passing of title, but to correct the rough estimate. Kellogg, who testifies this expressly, states- that the lumber was delivered according to the contract. Beach was the owner of the logs and Kellogg hauled and sawed them at Foulk’s mill, where the boards were piled, and was to have one-half. Beach testifies that the lumber remained undivided until after the sheriff’s sale of Kellogg’s half to Long'. Kellogg, therefore, seems to have made the only delivery the subject was capable of. The piles were estimated, delivered on the ground and were marked with Knapp’s name, before the levy. The verdict, under the instructions to the jury, has established this. There was evidence on this point which the court had to submit to the jury. But the testimony did not show the precise time when the marking was done. This raises the only question under the assignments of error. The court charged that it was not necessary the marking should be done at the instant of delivery, provided it was done as soon as the circumstances of the case would reasonably admit. By a reasonable time, the judge said, I mean as soon as it can conveniently be done. The language of the judges who delivered the opinions of this court in Cadbury v. Nolan, 5 Barr 326, and Chase v. Ralston, 6 Casey 541, as to the necessity of doing everything possible to indicate a change of possession, is very strong and very proper. But in all these cases involving a mere fraud in law as to creditors, we must look at the facts of each case, to determine the precise extent to which such strength of expression is meant to apply. Here the lumber was made out of the logs of another, and piled on the land of a third. The ownership of the defendant in the execution was an undivided interest thus acquired, and the state of the weather and roads postponed the purchaser’s hauling it away.

There had been no such decided possession in the defendant himself as tended strongly to mislead. He had agreed to sell it ' a month before it was manufactured, and when the sale was consummated it was done by the parties on the ground by counting, estimating and delivering in piles standing on the land of a third person; and very soon afterwards and before the levy the piles were seen marked with the purchaser’s name. Under these circumstances, it would stretch the law of legal fraud beyond its just limits, to pronounce against the title of Knapp the purchaser from Kellogg, by saying that he must show that the marking was done immediately at the time of delivery. Creditors are justly entitled to protection against secret alienations and frauds ; but there is a limit, and many cases show it, where legal presumptions must not overturn honest sales and fair dealing.

Judgment afiirmed.