Potter v. N. Stetson & Co.

11 Pa. Super. 627 | Pa. Super. Ct. | 1899

Opinion by

Beaver, J.,

The plaintiff brought an action of trespass against the defendants and declared in trover for the conversion of a piano held by the plaintiff, under the provisions of a written contract which appears in full elsewhere in the report of this case. There is no allegation of wrongful taking. It is expressly conceded by the plaintiff that the defendants had the right to take possession of the piano under the terms of the written agreement, the allegation being that the plaintiff, having tendered the balance of instalments due under the agreement, with interest, was entitled to the return of the possession of the piano, and, by reason of the failure to make such return, the defendants were guilty of a wrongful conversion of tbe plaintiff’s property to their own use. In order to avoid the legal effect of the written agreement, plaintiff made an offer to show by the defendants’ agent who was on the stand “ That, while in form the paper purports to be a hiring, that to that extent it does not express the truth of the relation between the parties, the truth being that the transaction was an actual sale and was placed in this form for the purpose of securing a lien to the vendors to enable them to secure payment for their property in the event of the purchaser’s failure to comply with the terms of sale.” Upon objection, the offer was overruled and the testimony rejected. The assignment of error relating to the action of the court in regard to this offer practically amounts to nothing, for the reason that both the witness who was upon the stand and the plaintiff himself detail all the circumstances attending the preparation and execution of the agreement, from which it plainly appears that, although the plaintiff objected to the form of the agreement, it was insisted upon by the agent of the defendants, who refused to consummate the transaction upon any other basis. The plaintiff understood the legal effect of the agreement and signed it with such knowledge. He, therefore, had the.full benefit of all that was contained in his rejected offer.

At the close of all the testimony, the court directed the jury to render a verdict for the defendants and this direction constitutes the only other error complained of. As to this we think the court was clearly right. “ Where the possession of personal property is transferred under an express contract of lease or other bailment contract, the mere fact that there is a superadded executory agreement for the sale óf the property to the transferee, upon the payment of a certain price at any time during the bailment does not convert the bailment into a sale and, until the execution of the contract of sale by the payment of the price, the title to the property remains in the bailor even as against the bailee’s creditors:” 2 P. & L. Dig. of Dec. 1936, 14-32. There was in the written agreement a definite period of rental — sixteen months — and a stipulation to return. Under the terms of the lease, therefore, and all of our decisions upon the subject, this would have constituted a bailment, even as against the creditors of the plaintiff. If so, what superior rights has the plaintiff himself ? The terms of the agreement are simple and easily understood. It is called a lease. Its terms are those of a lease. If the plaintiff is to be believed, he himself understood it at the time it was executed, objected to it but finally signed it, because he could secure the piano in no other way. The counsel of the plaintiff contends, however, that, although the defendants had a right to take possession of the property, they had no right to forfeit the payments made on account of the purchase money, alleging that this would be a fraudulent use of the agreement; but it is expressly stipulated in the agreement that, “ If default is made by the party of the second part in keeping any of the covenants herein, on his part to be performed, then the said bailment shall forthwith cease and determine and it shall be lawful for the party of the first part to enter upon the premises where the instrument is kept and repossess themselves of the same as though it had never been rented,” which, of course, the contract being rescinded implies that the payments made thereunder would be in the legal sense, as if never made. In other words, possession having been taken of the property under the terms of the bailment, it amounted to a rescission of the contract and terminated the rights of both plaintiff and defendants thereunder. It was the' right of the bailor to retake the leased property after failure on the part of the lessee to fulfil the obligations of the lease. To .assert this right was not to invoke a forfeiture but to enforce a contractual obligation expressed in words and implied in law: Cobb v. Deiches & Co., 7 Pa. Superior Ct. 252.

The plaintiff has referred to the elaborate discussion of the ■subject of bailments found in the opinion of the lower court in Ott v. Sweatman, 166 Pa. 217, affirmed and adopted by the .Supreme Court; but in that case the ice machine, which was the subject of the agreement, not only became a fixture of the real estate, but, so far as the agreement is quoted, it shows neither a definite period for the bailment nor a stipulation to return the property at the end thereof, nor can the latter be fairly inferred. The case was, therefore, in all its essentials different from the present one and is clearly distinguishable from all of the cases in which we have held the possession of personal property to be a bailment and, therefore, good as against creditors of the bailee. There is no ambiguity or uncertainty about the agreement in this case. It is called, a lease. Its terms are those of a lease. It provides for monthly payments within a fixed period and, upon default, for the return of the property. As already remarked, it would be clearly good as against the creditors of the bailee and is, therefore, of course, good as against him.

Judgment affirmed.