Callender v. Robinson
| Decision Date | 26 November 1880 |
| Citation | 96 Pa. 454 |
| Parties | Callender & Co. <I>versus</I> Robinson. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent
Error to the Court of Common Pleas of Butler county: Of October and November Term 1880, No. 320.
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John M. Miller, Lewis Z. Mitchell and John J. Henderson, for plaintiffs in error.—1. We contend there was but one question in this case, as the court below admitted, and that was whether the sheriff's sale to Thomas Robinson carried only Denny's interest in the firm of John F. Denny, or the title of the firm, and therewith the right in Robinson to the possession of the goods; and, to determine this question, the court left it to the jury to ascertain the character of the loans to, or endorsements for Denny — whether to him individually or to the firm. The frequent, uncalled for, and most pointed references in the charge to Denny's being contradicted, and to the alleged claim of defendant that the agreement was a fraud, &c., together with numerous statements that the arrangement between Callender & Co. and Denny was kept a secret, made up the greater portion of the charge, and left the case in such shape that the minds of the jury were necessarily strongly impressed with the idea that the court had concluded that the plaintiffs could not, and should not, recover.
Charles McCandless, for defendant in error.—The possession of personal property must follow the ownership as against creditors. The plaintiff could not sell Denny the goods on credit and permit him to go into possession of them, and to hold them out to the world as his own, and obtain credit on the faith of them, and hold title to the goods as against Denny's creditors. It is a fraud in law.
The plaintiffs only claim concurrently with Denny, the plaintiffs claiming title until the goods were paid for. Denny taking possession and treating them as his own, it is a fraud in law, and if it was a partnership, such as is claimed by the plaintiff, between them and Denny, it is either exclusive possession by Denny, or concurrent possession of both, and either are fraudulent in law. The plaintiffs, by their acts, enabled Denny to hold himself out to the world as the owner of these goods, by which he got credit and incurred indebtedness, and now the plaintiff or creditors must sustain a loss.
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Sweeney v. Girolo
... ... instructions the question as to the ownership of the property ... sold by the constable upon the executions against E. P ... Sweeney: Callender v. Robinson, 96 Pa. 454 ... Allison ... O. Smith and Smith V. Wilson, for appellee. -- The judgment ... under which the goods were sold ... ...
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Willard v. Bullen
...See, also, to the same effect, 17 Am. & Eng.Enc.Law, 931; How v. Kane, 2 Pin. 531, 54 Am.Dec. 152; Brown's Appeal, 17 Pa. 480; Callender v. Robinson, 96 Pa. 454; Valen v. Russell, 13 Barb. 590. Within the doctrine of these authorities, the contract between the plaintiff and the Bullens that......