No. 426 | Pa. | May 12, 1890
Opinion,
We are unable to agree entirely with the view taken by either of the parties. Both appear to have been in some degree misled by looking at the name, and not at the substance of the contract. It is called a lease, but it is manifestly a sale. No term is stipulated for the hiring, nor any rate per month or per annum. On the contrary, it is merely said that the horses are leased for a lump sum of one hundred and twenty-five dollars. But what is conclusive of the character of the transaction, is the stipulation that “ the ownership shall remain in Mary Hicks until payment is made in full.” If it was' merely a hiring, the ownership would have remained in Mrs. "" Hicks all the time, without any such stipulation. Possession was delivered to the purchaser, and if this were all the contract, plaintiff would clearly have been right in his claim to retain it. But the agreement stipulates that if the payment shall not be made as agreed, then the right of possession shall revert to the vendor, Mrs. Hicks. It is of no consequence whether tender was made before or on or after the first of April, for not only was time by the nature of the contract not of its essence, but the parties excluded any such idea by expressly stipulating for a resumption by the vendor on that date, not of the title, but of the possession, to remain until payment in full. At the date of the writ, therefore, and of the trial, the right of possession until payment was in the defendant; and, while defendant was wrong in refusing the money when tendered on April 1st, yet the tender was not valid to entitle plaintiff to a verdict in this replevin, unless it was maintained. Nothing short of payment, or its legal equivalent, a tender, tout temps prist, can, under this contract, deprive the defendant of the right to the possession of the horses, as security for the unpaid price. Some stress is laid in the argument of defendant in error on the fact of the delivery of possession to him before the signing of the so-called lease. But the oral testimony only makes still more Unquestionable the fact that the transaction was a sale, and defendant in error says himself that the writing was “ part of the bargain,” and that he held the team under it from No •
Judgment reversed, and venire de novo awarded.
By agreement of the parties, the case of Summerson v. Wycoff, No. 427 January Term 1889, Sup. Ct., was to be determined by the disposition of the case above reported, and the same decree was entered therein.