Collins v. Houston

• Decision Date: 05 January 1891
• Docket Number: 33
• Citation: 21 A. 234,138 Pa. 481
• Parties: T. D. COLLINS ET AL. v. A. C. HOUSTON
• Court: Pennsylvania Supreme Court

21 A. 234

138 Pa. 481

T. D. COLLINS ET AL. v. A. C. HOUSTON

No. 33

Supreme Court of Pennsylvania

January 5, 1891

Argued October 14, 1890 [Copyrighted Material Omitted]

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

No. 33 October Term 1890, Sup. Ct.; court below, No. 67 December Term 1887, C.P.

On September 21, 1887, T. D. Collins, William Dickey, E. H Darrah, W. G. McCain and others, trading as Collins, McCain &amp Co., brought replevin against A. C. Houston, assignee for creditors of G. W. Wilkins, for a lot of timber, part in raft and part in loose logs in Peart's eddy. The property was replevied and delivered to the plaintiffs on the usual bond. The defendant then pleaded, non-cepit and property.

At the trial on December 11, 1889, it was made to appear that in April, 1887, the plaintiffs, who were in the timber business in Forest county, sold to G. W. Wilkins, running a sawmill and boat yard at Peart's eddy on the Allegheny river in Armstrong county, a large lot of timber in rafts and logs. The bargain for the sale of the timber was made between Mr. Dickey, of the plaintiffs' firm, and Mr. Wilkins, at Pittsburgh. The timber was landed at Peart's eddy soon afterward, and on April 29, 1887, Mr. Darrah of plaintiffs' firm, assisted in the measurements and had what was alleged to be a settlement with Wilkins for the timber.

On the part of the plaintiffs, it was contended on the trial that the sale was conditional; that, under the contract as made between Mr. Dickey and Mr. Wilkins, the possession and title to the timber was not to pass to the purchaser until the contract price was paid. It was claimed, however, on the part of the defendant, that the sale of the timber was absolute; and, as written evidence thereof, he put before the jury a memorandum of the alleged settlement made with Mr. Darrah, dated April 29, 1887, and entered in Darrah's pass-book obtained on call, and also a written receipt of Mr. Darrah, of the same date, the memorandum and the receipt appearing at length in the opinion of the Supreme Court.

The defendant adduced evidence to prove, in addition, that, a few days after said alleged settlement, Madison Hooks, his river man, took the plaintiffs' lines from the timber, and put Wilkins's lines thereon; and by R. R. McGregor, that the latter carried the plaintiffs' lines to the railroad station and tabbed them to be shipped to the plaintiffs; also, that the tinber was afterwards moved by Mr. Wilkins to the place his own timber was kept, part of it used up by him as it was needed, and that plaintiffs, as either of them passed the point where the timber lay, had a plain view of what was being done with it.

It was shown also by the defendant, that, Mr. Wilkins having made the assignment for the benefit of creditors on August 20, 1887, the timber appraised as the first item in the inventory filed was the timber in controversy; that, at a creditors' meeting held on August 31, 1887, on business relating to the assignment, and attended by Mr. Dickey of the plaintiffs' firm, the inventory was laid before the meeting, and the plaintiffs' firm name headed a list of creditors' claims made out at the meeting, their claim being stated at $10,500; and that no claim was made by plaintiffs that the sale of the timber was otherwise than absolute, until the writ of replevin in this case was issued.

In the plaintiffs' rebuttal case, E. H. Darrah was called, and testified that he was one of the plaintiffs' firm:

Mr. Jenks: Q. State what you know with reference to this bargain that was made with Wilkins for this lumber, and all you know about it.

Objected to.

By the court: Objection sustained; he must refer to what he knows about it, with reference to his conversation with Wilkins; exception.

Mr. Jenks: State what you know concerning this transaction and the bargain with Wilkins with reference to this lumber.

Mr. Patton: We object to any part, as to any conversation the witness may have had with Wilkins.

Mr. Jenks: We want the whole question answered, or want it excluded.

By the court: Very well, we will exclude it; exception.

The witness was then examined as to his conversation with Wilkins on April 29, 1887, at the time of the alleged settlement.

At the close of the testimony, the court, NEALE, P.J., charged the jury in part as follows:

Right here, we may say to you, that as the assignee of Wilkins, the defendant is the direct representative of Wilkins. He stands, as it were, in Wilkins's shoes; and we may say, further, which we are really requested to do in one of the points, that the remedy against him is the same, and the rights of Houston are the same, as would be the remedies and rights with respect to Wilkins. They stand together; he, representing Wilkins, is subject to the like questions that Mr. Wilkins would be with respect to this property. . . .

After reviewing the testimony at some length, and calling attention to the fact that at the creditors' meeting on August 31, 1887, no claim was made that the sale of the timber was conditional, and to the explanation thereof on the trial, the court proceeded:

[Now, these are facts for you to take into consideration with reference to the right that the plaintiffs set up to replevy this timber. Did they show by any failure to make claim; that is, that would satisfy your minds, that they did not have a claim? It is a familiar principle of law that a man who has a right, and does not assert that right at a time when he ought to, is not allowed to assert it at a time when he might want to.] Whether that applies here or not, it will be for you, under all the evidence, to say. Mr. Dickey came down to Wilkins's Mill with Carrier, and he came to the meeting on August 31st, and there is no evidence that he made known to anybody at that time, this claim. He does not say so himself, and there is no evidence that at that time he made any assertion of claim. On the contrary, he put in a claim that might be inconsistent with such claim; namely, a claim for the amount of $10,500, which, if this balance of 34,000 feet of timber belonged to him and would not be included as a debt of Wilkins to him, would be about $5,000 in excess of their rightful claim. That is for the jury to consider. . . .

[Now, there is no evidence that from the 29th of April until the 20th or 22d of August, either of these parties were there to see whether their timber had been used, whether it was still tied with their ropes; although the testimony of Mr. Wilkins is that the ropes of these plaintiffs were taken off the rafts and sent back, I believe he says that; and you have the testimony of Madison Hooks that they were taken off the raft and taken up to the station and tabbed. His testimony goes no further than that. Were they sent home? If they were, that would be some evidence that the rafts, so far as the ropes were concerned, had undergone some change; that the timber was either being used or a change had been made in the location, or else that they had been tied with new or other ropes. It will be for you to say, if that is the fact, because all of this is for the jury, whether that would have been sufficient evidence to have put these plaintiffs upon notice, if the ropes were sent home, and made it a duty upon them to have come down, as careful men, to see whether their timber was being used, or appropriated or disposed of by Mr. Wilkins. But they were not bound to do so, if that was the contract. We are simply treating that as one of the elements of this case, as affecting them with notice, and affecting them with the duty of looking after their own interests.]

[This is one of the leading grounds upon which the plaintiffs seek to recover in this case; because, if there was no such conditional contract as they set up, then there was nothing to hinder, nothing to prevent Wilkins from using this timber as he saw proper. I mean there was no legal restraint upon him in using the timber as he saw proper. Even, as we have been requested to instruct, if there was such a conditional contract existing between the two parties, although binding upon the parties themselves as to themselves, it would not be binding as such on other creditors or innocent purchasers of the property. This is one ground upon which the plaintiffs claim the right to recover in this case.]

The other is, that at the time of the visit of Mr. Darrah to Wilkins on April 29, 1887, Wilkins there made representations to Darrah calculated to mislead him and of such a character as the law would regard as fraudulent. What we know by fraud is where one by a contract or representations undertakes or attempts to deceive and cheat another; takes undue or improper advantage of him. It is necessary for you to consider, in this aspect, what the character was in reference to that position of the plaintiffs in this case, because if there was a fraud perpetrated upon Darrah at the time, and that led to the execution of the contract and the delivery of the timeber, and Darrah relied upon that, then the contract was void as to Darrah and he would not be bound by it or held to it, he representing the plaintiffs, unless this was something occurring subsequent to the actual contract between the parties. If it occurred after there was an actual contract between the parties, and both parties were bound by the contract, then the subsequent declarations of Wilkins would not effect it and would not avoid it. If he had made the declarations subsequent to that, and there had been an actual delivery of the timber or actual sale and it was completed, those declarations if fraudulent, would not bind Wilkins, nor them. It would be, so far as that is concerned, however flagrant the declarations may have been, innocent, as...