Dixon v. White Sewing M. Co.

• Decision Date: 07 October 1889
• Docket Number: 156
• Citation: Dixon v. White Sewing M. Co., 18 A. 502, 128 Pa. 397 (Pa. 1889)
• Parties: J. R. DIXON v. WHITE SEWING M. CO
• Court: Pennsylvania Supreme Court

18 A. 502

128 Pa. 397

J. R. DIXON v. WHITE SEWING M. CO

No. 156

Supreme Court of Pennsylvania

October 7, 1889

Argued May 2, 1889

ERROR TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.

No. 156 January Term 1889, Sup. Ct.; court below, No. 19 February Term 1888, C.P.

On November 18, 1887, the White Sewing Machine Company brought trespass against James R. Dixon, sheriff of Cumberland county, to recover damages for the alleged seizure and sale by the defendant of three organs, belonging to the plaintiff under a writ of fieri facias issued against William H Dinkle. The defendant's plea was not guilty.

At the trial on November 23, 1888, the following facts were shown:

William H. Dinkle was a dealer in pianos, organs and sewing machines doing business in Carlisle. He sold organs usually on the instalment plan, upon written contracts drawn in the form of a lease providing for a monthly payment as a rental, with a clause of forfeiture for non-payment. On July 29, 1885, three organs, which were the subject of this suit, were in the hands of persons who had purchased them in this manner, and on that day Dinkle, being indebted to the White Sewing Machine Company, executed a paper whereby he transferred to said company, as collateral security for said indebtedness inter alia, his interest in the three rental contracts or leases which had been entered into between himself and the respective purchasers of said organs. No notice of this transfer was given to the lessees. Dinkle agreed, at the time, to collect the instalments payable upon the contracts and turn them over to the company, to be applied by it on his indebtedness. He did collect and pay over some of the instalments. At different times during the year 1886 these three organs were returned to him by the lessees thereof, the rental contracts being canceled, and were placed in his store, where they had been before the contracts were entered into. Upon his subsequently removing to another store-room, they were taken there along with the other goods which he had in stock.

In March, 1887, Dinkle was visited by an agent of the sewing machine company, with whom, after some negotiation, an agreement was made that he was to retain these organs in his charge, and act as the agent of the company in the care and disposition of them. ^[*] In May, 1887, Dinkle rented one of them to Mrs. Shreffler of Newville, another to Mrs. Wetzel of Carlisle, and placed the third on trial with Miss Getter of Newville.

On August 23, 1887, the organs being still in the possession of these three bailees, the New England Organ Company recovered two judgments against Dinkle. Writs of fieri facias were issued on these judgments the same day and delivered to the defendant as the sheriff of said county, who thereupon went to the residences of Mrs. Shreffler and Miss Getter, at Newville, made a memorandum of the numbers of the organs in their possession, and informed them that the same were levied on as the property of Dinkle. This was done in view of the organs, but the defendant did not touch them, and left them in the possession of the bailees. Upon his return to his office, his deputy indorsed on the writs a levy upon these two organs. On the same day the deputy went to the residence of Mrs. Wetzel, in Carlisle, and there levied on the defendant's interest in the organ which had been leased to her, leaving it in her possession. This levy was indorsed upon the writs as it was made. The sale bills put up by the sheriff followed the levies as originally made, advertising the sale of the two organs in the possession of Mrs. Shreffler and Miss Getter, and the defendant's interest in the organ in the possession of Mrs. Wetzel.

After these advertisements had been posted, the sewing machine company notified the sheriff that it claimed the three organs as its property. Thereupon, without going back to Newville to make a new levy, the sheriff simply changed the indorsements on the writs so as to restrict the levies to the interest of the defendant in the two organs originally levied on without such restriction. No notice of this alteration was given to the bailees of the organs. On November 2, 1887, a sale under these writs, conducted by the under-sheriff, took place on the pavement in front of Dinkle's store in Carlisle. When the organs were offered, the under-sheriff announced that only the interest of Dinkle in them was to be sold. The organs themselves were not there, being still in the possession of the persons who held them at the date of the levies. The New England Organ Company thereupon became the purchaser of Dinkle's interest in them. Possession of the organs was not delivered to it by the sheriff.

At the time of this sale there was attached to one of the writs of execution against Dinkle, then in the hands of the sheriff, a return of certain sales of personal property which had previously been made under them. The writs remained unreturned and in the sheriff's hands until the trial of this case. A few days before the trial, the return already written was detached and a new return, embracing all the sales made under these writs, was prepared. As to the organs in question, this return showed that only the interest of Dinkle therein was sold. It was read in court and filed with the prothonotary during the trial.

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

[The defendant offered in evidence the return which the sheriff had appended to fieri facias 25 of August Term, 1887, for the purpose of showing the levy and sale. The correctness of this return was denied, and it is insisted that the testimony clearly establishes that the organs at Newville were levied upon as the property of Dinkle without any qualification; that is, that the organs were levied upon, and not merely any interest he might have in them.] It is also contended by the defendant that no actual seizure was ever made of the property in dispute, and hence no trespass was committed by the sheriff, and no damages suffered by the plaintiff at his hands.

[The law, as we understand it to be, is that a wrongful levy, without the removal of the property or interfering with it in any way, will make the officer a trespasser; and, while an officer may levy upon the interest of a debtor in personal property in which another has an interest, yet if he levies upon and advertises for sale the entire property in the goods, he will become a trespasser.] [Now, we are of the opinion that if Dinkle made the conditional sales . . . as evidenced by the contracts presented to you, and in good faith and without any intent to hinder, delay or defraud creditors, assigned them to the White Sewing Machine Company on July 29, 1885, and they were in the spring and summer of 1886 returned to him at his store in the Gill house on North Hanover street, without any understanding with the Sewing Machine Company, and he treated them as in his custody for them and to secure their indebtedness, . . . and subsequently he removed them to the store on Main Street; and that while there, in March, 1887, an agent of the White Sewing Machine Company visited him, and the organs were pointed out to him, that is, to Johnson, and an arrangement was then made by which Dinkle was to act as the agent of the company in caring for them and in the disposition of them, in good faith, and without any intent to hinder, delay or defraud creditors; and that he afterwards removed them to the store-room in Noble's property on North Hanover street, without any understanding with the White Sewing Machine Company, and subsequently he rented one to Mrs. Wetzel, one to Mrs. Shreffler, and also gave one to Miss Getter on trial, with the option to purchase it, as agent of the aforesaid White Sewing Machine Company, and in pursuance of these contracts the organs had been delivered to and were in the possession of the said parties in Carlisle and Newville, the White Sewing Machine Co. had such property in them as mortgagees or pledgees as gave them the right to hold them without disturbance from any one; and, if on an execution subsequently issued, the sheriff levied on and advertised for sale the organs in the possession of Miss Getter and Mrs. Shreffler as absolutely belonging to Dinkle, as contended by the plaintiff, and subsequently sold them or their interest in them, the defendant would be liable to the plaintiff for any damage which has been shown by the evidence in the case has been suffered by him.] . . . .

Under the 23d section of the act of June 16, 1836, P.L. 761, relating to executions, it is provided that "goods or chattels of the defendant in any writ of fieri facias, which shall have been pawned or pledged by him as security for any debt or liability, or which have been demised, or in any manner delivered or bailed for a term, shall be liable to sale, upon execution as aforesaid, subject, nevertheless, to all and singular, the rights and interests of the pawnee, bailee or lessee to the possession or otherwise of such chattels or goods by reason of such pledge, demise or bailment." As it is undisputed that only the interest of Dinkle was levied upon in the organ in the possession of Mrs. Wetzel, there can be no recovery against the defendant for that organ, in our opinion.

* * *

The plaintiff requests the court to charge [inter alia]:

1. That the contracts, as shown by exhibits 28, 34 and 42, put the possession of the organs in controversy in this case out of W. H. Dinkle, and he could not, so long as the conditions of those contracts were complied with, regain possession of them, and the possession of the same was out of said Dinkle on July 29, 1885.

Answer We affirm this point. When the parties named purchased the organs,...