Stimpson Computing Scale Co. v. George Schetrompf & Sons

13 Pa. Super. 377 | Pa. Super. Ct. | 1900

Opinion by

Beaver, J.,

The contract between the plaintiff and defendant, which is-the order for one Stimpson Computing Grocer’s Scale, signed, by the defendant and accepted by the plaintiff, is unquestionably a bailment and not a sale. The rights of intervening-creditors do not arise in this case and the distinction between a bailment and a conditional sale discussed in so many cases is-not involved. As between the parties, the contract will be held to be just what it purports to be. After the delivery of the old scales and the payment of $5.00 monthly for the period of eight-months, defendant was to have the privilege of purchasing the scale ordered, upon the payment of $5.00 additional; the scale in the mean time to belong to the plaintiff and to be returned to-it, upon the failure on the part of the defendant to make any monthly payment or the last payment. Here were the definite period — eight months — and the stipulation to return at the end of the period which are the usual distinguishing features between a bailment and a conditional sale. The general rule upon the subject is well stated in 2 P. & L. Dig. of Dec., 1936 : “ 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 of 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.”

It was also especially agreed that the order should not be countermanded. The defendants in their affidavit of defense allege that, for reasons which therein appear, they countermanded the order for said scale before it was shipped, and never received it. If that were true, how could the plaintiff recover the value of the scale with interest? It would be entitled only to such damages as were shown to have been suffered by reason of the breach of the contract which relates to the countermanding of the order; and, assuming that it is true, it may be doubted whether the plaintiff could recover under the statement filed. As that is the subject of amendment, however, it would present no insuperable difficulty in the way of a final recovery for a breach of the contract, in case the defendants’ allegation as to countermanding the order were uncontradicted. Even if that were denied by the plaintiff and it were alleged that the scale was shipped before the order was countermanded, the delivery under the contract to a common carrier would not be a delivery to the consignee and would not complete the sale for, under the very terms of the contract, there was to be no sale, until after the payment of eight monthly instalments. The delivery of the scale to a common carrier, addressed to the defendants, would, of course, be no more than a delivery under the terms of the contract by which the defendants were to hold the scale as the bailees of the plaintiff. The plaintiff in his argument endeavors to neutralize the effect of the character of the agreement by saying that the words “ ‘ and until the said purchase by us the said scale to belong to you ’ were inserted in an effort to protect the property from possible creditors of the vendees by creating a secret lien upon it in favor of the vendors but which the courts have decided in innumerable instances cannot be done.” The courts have decided that this cannot be done to the injury of creditors of the vendee bat no court has decided, so far as we know, that a vendor who is a party to such a fraud is not bound thereby. This is the fundamental question in the case and the grounds upon which the court below ruled that the affidavits were not sufficient to send the case to a jury need not be discussed. The first affidavit of defense fairly raised the question as to the right of the plaintiff to recover under its statement and should have been so held.

Judgment reversed and a procedendo awarded.