53 Pa. Super. 344 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff sold to Albert A. Gery an automobile valued at $5,000, and Gery paid at that time $500 on account and the company refused to accept notes for the balance of the purchase price, when both parties agreed to make a contract of bailment and on January 27, 1910, such a contract in writing was executed and provided that Gery should pay $2,500 cash and $320 per month for eight succeeding months. The machine was delivered to Gery, but he never made any of the payments stipulated in the written contract. Within a few days after he received the auto from the plaintiff he turned over to it an old auto for which the plaintiff company allowed him $500 in exchange, and at the same time he paid $1,800 in cash. Subsequently payments were made as follows: July 29, 1910, $500; December 22, 1910, $200; December 29, 1910, $200; August, 1911, $100. On October 28, 1911, Alexander M. DeHaven, this defendant, issued an execution against Gery and levied upon the machine which was then in Gery’s possession and use. Under the bailment contract the term had expired for the retaking of
On the trial of this issue the court gave binding instructions to find for the plaintiff, which constitutes the only assignment of error urged on this appeal.
It is conceded that the payments of rental were irregular, both in amount and as to time, and there is no suggestion of bad faith or any intention to mislead or deceive any party not directly interested in the contract. It is urged that although the agreement on its face is a lease, it is always a question for the jury to determine whether at the time it was entered into, there was an understanding between the parties to it, that the transaction was intended to be a sale and whether the agreement was intended to secure the price. In support of this, Link Machinery Co. v. Trust Co., 227 Pa. 37; In re Gehris Herbine Co., 188 Fed. Repr. 502, and Am. Car Co. v. Altoona, etc., R. R. Co., 218 Pa. 519, are cited. After an examination of these cases we feel that they did not decide that under all the circumstances in an action of this kind the question of title must be submitted to the jury. In the case before us the agreement upon its face is clearly a bailment: Stiles v. Seaton, 200 Pa. 114; Ditman v. Cottrell, 125 Pa. 606; Painter v. Snyder, 22 Pa. Superior Ct. 603. The oral testimony adduced did not warrant the finding that the terms of the agreement were varied or that there was any other arrangement than that as clearly stated in the contract. It being therefore a bailment by the terms of the writing and not a sale the title remained in the bailor, even as against creditors; Rowe v. Sharp, 51 Pa. 26,
