200 Pa. 168 | Pa. | 1901
Opinion by
When this case was here before (192 Pa. 176), we held that “ the bill of sale made by Beswick and Crowther to McCullough was absolute, and transferred the entire title of the grantors in the articles mentioned to the plaintiff, without any condition or qualification whatever.” We now repeat these words of our late Brother Green ; and the only question to he passed upon is, whether there was such actual or constructive fraud connected with the transfer as made it void when assailed by the appellant.
The transfer was made for the very proper purpose of pro- •
Whether there was such constructive fraud on the part of McCullough and the firm of Beswick and Crowther in the transfer as now stands in the way of the former’s right to recover, was submitted to the jury as a question for their determination, under sufficiently clear and intelligent instructions, and in a charge that was not inadequate upon a review of the
The building in which this machinery was located belonged to McCullough, and there was not only no reason why it should be taken elsewhere, but there were very good ones why it should remain. The machines weighed tons; were bolted down to the floor of the mill; were of great length and covered with very fine steel wire; and appellee’s tenants—his vendors, tobe sure —needed the machinery in their business. All of these conditions were properly taken into consideration by the jury. After the execution and delivery of the transfer to McCullough, he was bound, by some act, to indicate his ownership of the property and to assume control of it, and it was for the jury to determine whether he had submitted evidence to justify a finding that he had done all that was required of him under the circumstances. That ownership was asserted over the machinery after it had been transferred, is clearly established by the testimony of Lord, who states that he “ tagged all the machinery as bearing title of James A. McCullough & Company,” and that, when he found some of the tags had been taken off before the sheriff’s levy, he
The following, among other authorities, sustain the correctness of what was said to the jury on the subject of change of possession: “It was for the jury to find from the evidence whether the sale was in good faith or colorable, and whether the ‘ change of possession was all that could reasonably be expected of the vendor, taking into view the character and situation of the property and relation of the parties :’ Evans v. Scott, supra;” Renninger v. Spatz, 128 Pa. 524. “ The modern doctrine upon this subject appears to be that, in determining the kind of possession necessary to be given, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required: Crawford v. Davis, 99 Pa. 576; Ziegler v. Handrick, 106 Pa. 87; McClure v. Forney, 107 Pa. 414;” Pressel v. Bice, 142 Pa. 263. “ The results of these cases
were summarized in Crawford v. Davis, 99 Pa. 576, Avhere it was said that the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of the trade or business are all to be considered in deciding the sufficiency of the possession taken by the puchasen This was repeated in McClure v. Forney, 107 Pa. 414, and in Renninger v. Spatz, 128 Pa. 524:” Stephens v. Gifford 137 Pa. 219. “ Where personal property sold is not reasonably susceptible of actual delivery a constructive delivery is sufficient, and it ki not necessary that the vendee should do more than assume such control of it as to reasonably indicate the fact of the change of ownership. If there has been neither delivery nor the assumption of control, it may be the duty of the court to pronounce the sale void for legal fraud; but when the vendee has assumed control, the question whether the sale is bona fide is usually one of fact, and the question is whether the vendee has done all that could reasonably be expected in such a case. This is to be determined in view of the relation of the parties, and the nature, use and situation of the property. This rule has been upheld in a long line of cases, among the later of which is Renninger v. Spatz, 128 Pa. 524:” Goddard, Hill & Co. v. Leopold Weil & Co. 165 Pa. 419. To the foregoing author
Whether the judgment given by Crowther to Willey on February 18,1896, represented any unpaid indebtedness of the firm of Beswick and Crowther due to him on October 12, 1895, the date of the transfer of the machinery, does not appear. Willey himself did not testify, and Crowther did not seem to know. If the judgment did represent any such indebtedness, it ought to have been readily ascertainable and easily proven; and, in this controversy, in which the appellant alleges a fraud upon him as a judgment creditor, he ought to have shown that his judgment represented not only indebtedness incurred since October, 1895, but included what was then due him; or, at least, some portion of it. From all that can be gathered from the record, he may have been a subsequent creditor. It was upon him to show that he was not.
There is no error here. The assignments are all overruled and the judgment is affirmed.