Snyder v. Bougher

214 Pa. 453 | Pa. | 1906

Opinion by

Mr. Justice Stewart,

This was an action for damages alleged to have been sustained in consequence of appellant’s failure to complete his contract of purchase-at a public sale made by a trustee in bankruptcy, under authority of the United States district court for the eastern district of Pennsylvania. The. bankrupt whose property was sold, was a licensed retail dealer in liquor in the-city of Philadelphia, conducting a saloon .in premises leased for that purpose. -He was the owner of the furniture and fixtures of the place. Regardless of what was contained in the referee’s decree of sale, and in the printed advertisement which closely followed it in the matter of description, the property intended to be sold and which was sold, included nothing but the furniture and fixtures of the saloon, and the unexpired lease of the premises. The order made by the referee, so far as it included the license that had been granted to the bankrupt, was nugatory. A license granted for the sale of liquor could not be made the subject of such sale; since a license of this character is but a personal privilege, not assignable except as' authorized by the act of assembly, and in the mode therein prescribed: Blumenthal’s Petition, 125 Pa. 412. The fact that something outside the power of the court to sell was included in the order of sale, could not affect in any way the validity of the order with respect to those articles of property which were properly included. As to these, the order stood as though nothing else was included in it. In some other form of proceeding, the fact that the same mistake appears in the printed advertisement might be of more or less consequence, but in this inquiry it is without any. Appellant does not claim that he was misled by the advertisement. He asserts as the only reason and excuse for his failure to comply with his contract, that the bankrupt whose property' he purchased, had given him to understand after the sale that he would resist and prevent the license being transferred to him. That nothing beyond the furniture, fixtures and unexpired lease was intended to be sold, and that buyers must have so understood, is manifest from the fact that in all the printed notices and public announcements, the sale was advertised as a conditional sale, subject, first to the approval of the court, and, second, to the transfer of the license by the license court. The notice given at the sale contained these words : “ If the license court fails to transfer the license to the purchaser, there is no sale, and the purchaser will receive his money (the hand money) back.” Being a conditional sale of property, depending upon the approval by the court of an application to be made for the transfer of the license to the purchaser, its validity is not open to question. We concede the point urged upon argument, that a license to sell liquor is not the subject of sale, but this circumstance does not affect the present case except in the way we have indicated. The learned trial judge was correct in his view of the law of the case, and the assignments of error that relate thereto, are overruled. But error that requires reversal, was committed in giving binding instructions to the jury to find for the plaintiff the amount expressed by the verdict. This is complained of in the first assignment of error. Whether the true measure of damages in this case was the difference between the price at which appellant agreed to buy and the price obtained at the second sale, depends on whether the second sale was a fair one and made upon the same terms as the first in' every material respect. But before this measure could be applied, a finding by the jury was necessary with respect to these facts. The facts were not admitted, and the evidence relied on to establish them was in a large part oral testimony. This necessarily drew the case to the jury. It matters not how conclusive and overwhelming the testimony, it was for the jury and it alone to pass upon the credibility of the witnesses, and place the correct construction upon the language they used: Reel v. Elder, 62 Pa. 308. This is settled law, and its disregard must prove fatal in every case where properly excepted to.

Judgment reversed and venire facias de novo awarded.