Chamberlain et al. v. Smith

• Decision Date: 19 March 1863
• Citation: 44 Pa. 431
• Parties: Chamberlain <I>et al. versus</I> Smith.
• Court: Pennsylvania Supreme Court

44 Pa. 431

Chamberlain et al. versus Smith.

Supreme Court of Pennsylvania.

March 19, 1863.

ERROR to the Common Pleas of Tioga county.

H. W. Williams and S. F. Wilson, for plaintiff.

Henry Sherwood, for defendants.

The opinion of the court was delivered, March 19th 1863, by STRONG, J.

The cattle, for the value of which this suit was brought, belonged to Mrs. Chamberlain, one of the defendants below, and plaintiffs in error, prior to the 12th day of January 1858. On that day a contract was entered into between John Benson, acting for Mrs. Chamberlain, and James McWharter, under which the cattle came into the possession of McWharter. The contract is contained in the following receipt given at the time: — "January 12th 1858. Received of John Benson, one pair of three-year old past stags, to keep and work in a reasonable farmer-like manner, for the term of one year; said cattle to be returned in one year. But the said McWharter has the privilege, by paying $40, and legal interest, at the expiration of the year, to keep the said cattle. (Signed) J. McWHARTER." Before the year ended, McWharter sold the cattle to Andrews, under whom the plaintiff below claimed, but he never paid the $40, nor, so far as it appears, notified Mrs. Chamberlain that he had elected to become a purchaser. After the termination of the year, possession of the cattle having been obtained by the defendants, the plaintiff brought this suit to recover their value. On the trial, after the evidence had been introduced, the court instructed the jury that the transaction between Benson and McWharter was a conditional sale of the cattle, and, the exclusive possession having been delivered to the latter, that the sale of them by McWharter to Andrews, and his subsequent sale to one from whom the plaintiff purchased, vested the title and ownership in the plaintiff, discharged from any lien or claim of Mrs. Chamberlain, and that he was therefore entitled to recover. There was testimony at the trial that McWharter gave to Benson, about the time when the contract was made, a heifer "for the use of the cattle." He testified distinctly that "the delivery of the heifer was for their use," agreed to be so, "that he considered the heifer to be worth in the neighbourhood of $17," and that "he considered if he could pay the $40 the heifer was to go towards it."

The court left nothing to the jury but the assessment of damages, and in the charge ignored all the provisions of the contract that stipulated for a bailment. It undertook to say that the possession was delivered under a contract of sale, and not under a bailment,...