Davis v. Southern Surety Co.

• Decision Date: 24 November 1930
• Docket Number: 208
• Citation: 153 A. 119,302 Pa. 21
• Parties: Davis, Trustee, v. Southern Surety Co., Appellant
• Court: Pennsylvania Supreme Court

153 A. 119

302 Pa. 21

Davis, Trustee, v. Southern Surety Co., Appellant

No. 208

Supreme Court of Pennsylvania

November 24, 1930

Argued October 7, 1930

Appeal, No. 208, March T., 1930, by defendant, from judgment of C.P. LawrenceCo., Dec. T., 1928, No. 166, on verdict for plaintiff, in case of Charles R. Davis, trustee in bankruptcy of C. B. Burns and I. R. Burt, trading as Burns & Burt v Southern Surety Co. Affirmed.

Trespass for wrongful conversion of property.Before CHAMBERS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $22,810.Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

Norman A. Martin, with him J. Norman Martin, for appellant.-- Burt was not qualified to testify to the value of secondhand machinery: P., B. & B. Ry. v. McCloskey,110 Pa 436;Pitts., etc., Ry. v. Vance,115 Pa. 325;Gallagher v. Kemmerer,144 Pa. 509;Markowitz v. R.R.,216 Pa. 535;Hope v. R.R., 211 Pa. 401.

In chief, plaintiff disclosed the sale of the machinery by defendant.It was sold by the witness by whom that fact was disclosed.Defendant had the right to cross-examine this witness as to the prices received and to value of machine to show if it was sold at a proper price: Tiley v. Moyers,43 Pa. 404;Hopkinson v. Leeds,78 Pa. 396;Webber v. Com.,119 Pa. 223;Helser v. McGrath,52 Pa. 531;Wolf v. Wolf, 158 Pa. 621.

Defendant had the right to take possession of the machinery: Christ v. Zehner,212 Pa. 188;East End Mantel Tile Co., 202 F. 275;Bank of N. Am. v. Motor Car Co., 235 Pa. 194.

Wylie McCaslin, with him Roy M. Jamison, for appellee.-- The owner of goods or merchandise being familiar with its character, condition and cost and having some knowledge of the prices for which such property has been sold and having a general knowledge of such property, is competent to testify as to its value: Patterson v. Transfer Co.,87 Pa.Super. 257;Lloyd v. Haugh,223 Pa. 148;McGill v. Rowand,3 Pa. 451;Whitesell v. Crane, 8 W & S. 369;Mish v. Wood,34 Pa. 451;Hofford v. R.R.,43 Pa.Super. 303.

If a witness offered has any claim to be considered as an expert, the action of the court in admitting his testimony will not be reversed: Stevenson v. Coal Co.,203 Pa. 316;Del. C.S.T. Co. v. Starrs, 69 Pa. 36.

Knowing that Burns and Burt were insolvent at the time, defendant took possession of this property within four months of the adjudication of Burns and Burt as bankrupts.It is therefore respectfully submitted that the defendant took possession of this equipment unlawfully and had no legal right so to do at that time: Greene Co. v. Surety Co.,292 Pa. 304.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

In 1922, the partnership of Burns & Burt, then engaged in highway construction, entered into a contract with Lawrence County for the construction of an improved highway extending between New Castle and Ellwood City, known as section 2 of Route 315, and thereafter the same parties entered into a contract for the construction of another improved highway extending between Harlansburg and Slippery Rock, known as section 2 of Route 233.In each case the partnership gave the county a bond with the defendant, Southern Surety Company, as surety, conditioned for the faithful fulfilment of the contract and the saving of the county harmless, etc.The defendant for its protection took a conditional written assignment of the partnership's road building equipment, including shovels, rollers, pavers, etc., which by its terms authorized the surety company to take possession of the equipment, in case the partnership made default.The latter built the two highways according to contract and they were accepted by the county in 1923.The partnership, however, was unable to pay certain outstanding accounts to third parties for materials used in the construction of these highways and in February, 1929, the defendant, on the assumption that its bonds covered such liabilities to third parties, and that, by such failure to pay, the partnership had made default, seized the equipment, which it proceeded to sell from time to time as it had opportunity.In May, 1924, at the instance of creditors, the partnership was adjudged bankrupt in the United States Court and Charles R. Davis was appointed trustee and later as such brought this action in trespass against the surety company to recover for the equipment so taken.The trial resulted in a verdict and judgment for plaintiff and defendant has appealed.

The case was stubbornly contested but the record discloses no reversible error.The only default claimed was the contractors' failure to pay third parties for material used in the construction of the highways; for this, neither the county nor the surety on the contractors' bond was liable.The bond was given to the county and for its protection and cannot be construed as embracing the indebtedness of the contractors to third parties, incurred in construction of the highways.We so held in an exhaustive opinion by Mr. Justice KEPHART, in case of Greene Co. v. Southern Surety Co.,292 Pa. 305, where the condition of the bond is the same as that in the instant case.It follows that the action of the defendant in seizing the equipment in question was wrongful and renders it liable to the plaintiff for the value of the property so taken.It is proper to say that this taking was before the decision above referred to.What defendant had paid on judgments entered against it by consent at the suits of materialmen, under a mistaken view of the law, is not important in the instant litigation.

The defendant's taking possession of the property being unlawful, constituted a trespass, hence, no demand for its return was required.It is unnecessary, therefore, to determine the sufficiency of the demand made by plaintiff upon defendant's employee who was custodian of the property.Furthermore, defendant had sold a large majority of the property before the suit was brought and sold the balance shortly thereafter.Of course, such conversion obviated the necessity of a demand for a return, even had the original taking been lawful.SeeWaring v. Pennsylvania Railroad Co.,76 Pa. 491;Etter v. Bailey,8 Pa. 442;Taylor v. Lyon,10 Sadler 175;Blakey v Douglas,3 Sadler 495;38 Cyc. 2032;see alsoWolf v. Wolf,158 Pa. 621,...