270 Pa. 514 | Pa. | 1921
Opinion by
This is an appeal from an order discharging a rule for judgment for want of sufficient affidavit of defense in an action of replevin. Two motor trucks, valued at $10,875.50, held under bailment leases, were seized. This entire amount, with interest, had been paid according to the terms of the bailment, except $37.20, interest, and the dollar on each lease necessary to- pass title at the end of the term, and, because of this, the action was brought.
The bailor can recover only, by showing right of possession, arising through some breach of the contract. “In an action of replevin, the plaintiff must establish either a general or special property in the goods replevied, and his right to possession, which right must be exclusive to authorize a delivery of the property to him”: McFarland-Meade Co. v. Doak, 63 Pa. Superior Ct. 27,
Appellee, urges the small item of interest and transfer charge cannot be set up as a breach, as the former was paid and tender of both these sums was, and is now, made, though appellant refused to state the balance due on this account. If these facts are correct, while we have no intention to rewrite the terms of the bailment, the evident purpose of which is generally very well known, nevertheless appellant may, by its conduct, present such circumstances as would estop it from assert
The appeal is dismissed with a procedendo.