O'Connor v. Clark

• Decision Date: 07 October 1895
• Docket Number: 169
• Citation: 170 Pa. 318,32 A. 1029
• Parties: Annie O'Connor, Adm'x of the estate of John O'Connor, Deceased, v. John Clark, Appellant
• Court: Pennsylvania Supreme Court

32 A. 1029

170 Pa. 318

Annie O'Connor, Adm'x of the estate of John O'Connor, Deceased, v. John Clark, Appellant

No. 169

Supreme Court of Pennsylvania

October 7, 1895

Argued January 21, 1895

Appeal, No. 169, July T., 1895, by defendant, from judgment of C.P. No. 2, June T., 1891, No. 89, on verdict for plaintiff. Reversed.

Replevin for a horse and wagon. Before PENNYPACKER, J.

At the trial evidence for the defendant tended to show that in September, 1890, John O'Connor, who was engaged in the business of keeping wagons for hire, had in his employ George Tracy, who had formerly been in business for himself as a piano mover. At this time, O'Connor was having a wagon built, and he directed the builder to print on the wagon the words "George Tracy, Piano Mover." The apparent object of this was to retain the business which Tracy had built up for himself. In April, 1891, Tracy attempted to sell the wagon at a bazaar but was not successful. He subsequently encountered the defendant, who agreed to buy the horse and wagon for $125, but before paying the money, he went with Tracy to a police station and a saloon, where Tracy was identified as the George Tracy whose name was on the wagon. There was evidence that Tracy was intoxicated at the time of the sale.

The court charged in part as follows:

"[As I view this case there is very little in it for your determination. It is no doubt a hardship on the defendant that he should have paid his money away for something to which he got no title, but it appears from the undisputed testimony that this wagon belonged to the plaintiff's testator and that he was the owner of it, and that this man Tracy, without his permission, took it off and sold it, or attempted to sell it. Under these circumstances no title was conveyed to the defendant. If, therefore, you believe the testimony in this case, it is your duty to find a verdict for the plaintiff.]" [1]

The defendant has submitted the following points for instruction:

"1. If the jury believe from the evidence that the plaintiff's decedent allowed Tracy, who sold the team to the defendant, to exercise such control and possession as to imply a right to sell, then the evidence must be for the defendant. Answer: What is meant by that is, no doubt, that the verdict must be for the defendant. Under the circumstances of this case I decline that point. [2]

"2. If the jury find from the evidence that the plaintiff's decedent allowed Tracy to put his name on the wagon, and made no effort to efface it, and thereby allowed the defendant to be misled, their verdict must be for the defendant. Answer: I decline that point, having instructed you that the verdict ought to be for the plaintiff in the event of your believing the testimony." [3]

Verdict and judgment for plaintiff for $275. Defendant appealed.

Errors assigned were (1-3) above instructions, quoting them.

Judgment reversed and a venire facias de novo awarded.

John H Fow and E. A. Anderson, for appellant. -- The conduct of the owner of the horse and wagon was such that it would undoubtedly be a fraud on the defendant, an innocent purchaser for value, to allow a recovery against him: Lecky v. McDermott, 8 S. & R. 500.

The rule of law is well established that where one of two innocent parties must suffer a loss, such loss must be borne by the party whose neglect was the occasion of it: Miller v. Broarsky, 130 Pa. 372; Shaw v. Levy, 17 S. & R. 99; Sinclair v. Healy, 40 Pa. 417; Lecky v. McDermott, 8 S. & R. 500; Rupp v. Palmer, 3 Watts, 178.

J. Edward Carpenter, for appellee. -- The defendant purchased the horse, wagon and harness from a drunken man, at a price so low as to have been ample notice to a purchaser that he was not dealing with the owner.

The title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law: Saltus v. Everett, 20 Wend. 366; McMahon v. Sloan, 12 Pa. 229; Ripley v. Galston, 9 Johns. 197; Quinn v. Davis, 78 Pa. 15.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

If there were nothing more in this case than the facts recited by the learned trial judge in the excerpt from his charge quoted in the first specification of error, the instructions therein given to the jury to find for the plaintiff, if they believed the testimony, would be substantially correct. The only facts of which this instruction is predicated are, (1) that the wagon in question was the property of John O'Connor the original plaintiff, and (2) that Tracy without his permission, took it and sold it or attempted to sell it to the defendant as his own. But, these are not the only facts of which there was evidence before the jury. On defendant's behalf, it is contended that the testimony tended to prove, and the jury, if they had been permitted, would have been warranted in finding that defendant purchased the property in question from Tracy in the honest belief that he was in fact the owner thereof; that the name and occupation of Tracy, viz: "George Tracy, Piano Mover;" were on the wagon when he offered it for...