Buffalo Hardware Co. v. Hackenberg

• Decision Date: 05 October 1891
• Docket Number: 434
• Citation: 144 Pa. 107,22 A. 875
• Parties: O. S. GARRETSON ET AL. v. W. HACKENBERG ET AL
• Court: Pennsylvania Supreme Court

22 A. 875

144 Pa. 107

O. S. GARRETSON ET AL. v. W. HACKENBERG ET AL

No. 434

Supreme Court of Pennsylvania

October 5, 1891

Argued May 7, 1891

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF POTTER COUNTY.

No. 434 January Term 1891, Sup. Ct.; court below, No. 58 March Term 1890, C.P.

On December 26, 1886, an issue in sheriff's interpleader was ordered, wherein O. S. Garretson and J. G. Garretson, doing business as the Buffalo Hardware Co., were made plaintiffs and Wm. Hackenberg and C. W. Thomas, doing business as Hackenberg & Thomas, were made defendants, to determine the title to certain goods and chattels levied upon under a fieri facias in favor of Hackenberg & Thomas as the property of A W. Burt, but claimed by the plaintiffs. Issue joined.

At the trial, on September 16, 1890, the case presented was in brief as follows:

On August 23, 1889, A. W. Burt was indebted to the plaintiffs in the sum of $2,486, on a book account; and on that day W. C Burrows, the plaintiffs' business manager, went to the lumbering camp of Burt, who was getting out timber under a contract with Goodyears, landowners, and bought from Burt his camping outfit, to wit, horses, harness, sleds, an ox, pigs, axes, levers, chains, tools, dishes, stoves, beds and bedding, lumber-wagons, etc., for the sum of $1,643, taking an itemized bill of sale therefor, with a receipt by Burt acknowledging payment by a credit on the book account against him. Burt also made an assignment to the plaintiffs of his contract with the landowners. The property was not removed from the land where it was in use, but the men were at once notified by Burrows that the plaintiffs had bought out Burt's interest in the property and in the timber contract, and that thereafter they would be the plaintiffs' employees, and it was arranged that Burt should remain as foreman for the plaintiffs. On October 7, 1889, judgment was entered by Hackenberg & Thomas, defendants in the issue, against A. W. Burt, on a note for $625 dated October 4, 1888, with credits thereon; and the same day, a fieri facias issued whereon the levy in this case was made, the plaintiffs then being in the use of the property in the manner above stated.

The case being closed on the testimony, the court MORRISON, J., charged the jury:

We assume that this was a bona-fide transaction, but we think that the parties utterly failed under the law to deliver this property in the way that the law requires, so as to make it a valid title, in the hands of the Buffalo Hardware Co. against the creditors of A. W. Burt. For the purposes of this action, we assume that Mr. Burt did owe the Buffalo Hardware Co., but we say that its effect was a legal fraud upon the execution creditors.

We have been asked by counsel for the plaintiffs to charge the jury as follows:

1. That if the jury believe that the transfer of the property was bona fide and in good faith, there was a sufficient delivery of the property, under the circumstances, to convey the title.

Answer: Under the undisputed evidence in the case we answer this point in the negative. We say there was not a sufficient delivery, not such a delivery as ought to have been made and could have been made.

2. That, though indebted to others at the time of the transfer, if the indebtedness between Mr. Burt and the Buffalo Hardware Co. was bona fide, he had the right to make the transfer, if he made it bona fide.

Answer: We answer that in the affirmative, as a legal proposition; but what we say is, that he did not make the delivery and transfer as the law requires him to make it, and therefore the title did not pass.

Defendant's counsel have asked us to answer certain points, but it is unnecessary that we should answer any but the last one, that is:

3. That, under the evidence in this case, the verdict of the jury must be for the defendants.

Answer: We answer that point in the affirmative, and direct the prothonotary to take your verdict for the defendants.

The jury returned a verdict for the defendants, as directed.

A rule for a new trial having been argued, the court, MORRISON, J., on February 2, 1891, filed an opinion in part as follows:

The evidence was quite sufficient to show that this transaction or sale was not fraudulent in fact. There is no doubt that Burt was largely indebted to the plaintiffs; and it may be conceded that the amount credited to him was a reasonably fair price for the property at the time. But in our view, this sale, as against the other creditors of Burt, was fraudulent in law, for the reason that there was no such delivery or change of possession of the property as the law requires.

Taking into consideration the character of the property, the purpose for which it was used, and that the plaintiffs desired to continue the use of it, in the same business and in the same place, we do not say that they were required to remove the property to another location. But we do say that they should have required Burt to make a delivery of the property to them, or to some one for them, as fully as the character of the property and the purpose for which it was to be used would permit. This could have been done by putting a new man in possession, and having Burt go and remain away from the property; or, perhaps it might have been done by putting a superintendent or manager into the possession and management of the property, and retaining Burt as a subordinate or assistant. The right of a creditor, as between himself and his debtor, to take the latter's property in payment of the creditor's claim, and leave the property with the debtor, is not questioned; nor is the right of a failing debtor to prefer a creditor questioned. But we hold that when an insolvent debtor undertakes to sell and deliver all his property to one creditor, to the exclusion of the others, the rule that the sale of personal property without change of possession is void, ought to be enforced. If the pretended sale in the case in hand was not fraudulent in law, as against the creditors of Burt, then we are unable to see what there is left of the rule that a sale, though honest in fact, may be fraudulent in law.

A careful consideration of the cases cited by the learned counsel for the plaintiffs, has not changed our view as expressed to the jury at the trial. In reaching this conclusion we have not overlooked McKibbin v. Martin, 64 Pa. 352, and kindred cases, but we think the case at bar is, on its facts, clearly distinguishable from the strongest cases in the books, cited by the counsel for the plaintiffs, to support his contention that the case ought to have been submitted to the jury.

The motion for a new trial is refused, and the rule to show cause is discharged.

-- Judgment having been entered in favor of the defendants, the plaintiffs took this appeal, assigning for error:

1, 2. The answers to the plaintiffs' points.

3. The answer to the defendants' point.

Judgment reversed, and a venire facias de novo ordered.

Mr John Ormerod (with him Mr. A. B. Mann), for the appellants.

Counsel cited: Hugus v. Robinson, 24 Pa. 9; Avery v. Street, 6 W. 247; Renninger v. Spatz, 128 Pa. 524; McKibbin v. Martin, 64 Pa. 360; Dunlap v. Bournonville, 26 Pa. 74; Evans v. Scott, 89 Pa. 136; Pearson v. Carter, 94 Pa. 156; Crawford v. Davis, 99 Pa. 576; Ziegler v. Handrick, 106 Pa. 87; Cessna v. Nimick, 113 Pa. 82.

Mr. H C. Dornan (with him Mr. C. L. Peck, Mr. M. F. Elliott and ...