Farmers' Bank v. McKee

• Decision Date: 31 March 1845
• Parties: Farmers' Bank of BUCKS Co. <I>v.</I> McKEE.
• Court: Pennsylvania Supreme Court

Page 318

2 Pa. 318

Farmers' Bank of BUCKS Co. v. McKEE.

Supreme Court of Pennsylvania.

March 31, 1845.

ERROR to the Common Pleas of Bucks county.

COPYRIGHT MATERIAL OMITTED

Ross and Fox, for plaintiff in error.—By the contract, the property remained in the company until the payments were completed by the $10 per trip retained, and a transfer made; the object was to secure the service of the boats and men for two years. The case was in effect decided by Lehigh v. Field, 8 Watts & Serg. 232, where, under a similar agreement, it is said no title passed. But this action is founded on property, the full and perfect right to which is necessary to its maintenance, 2 Sel. N. P. 520; 13 East, 614, 522; 2 Maul. & Sel. 397, (Busk v. Davis); M`Donald v. Hewit, 15 Johns. 349. If any act remains to be done, trover will not lie, was said in this case, and Rapeljie v. Smith, 6 Cowen, 250; 2 Bl. Com. 448; Ross on Vend. 28; Shipley v. Davis, 5 Taunt. 621. Here the company had the right to declare all the payments forfeited, and the condition of a transfer shows the title was intended to remain. Nor could he sue thus for a partial right; if he was entitled to any part, it was to the whole, 1 T. R. 658; 1 East, 363. The question of demurrage had not been settled by the company; nor had the president a right to allow credit for another debt; it was beyond his authority, Ridgway v. Farmers' Bank, 12 Serg. & Rawle, 263; 1 Rawle, 230. The evidence showed, after all the evidence of conversion which was relied on, that plaintiff assented to the retention of the boat, and brought suit without further demand. The rule as to damages is found in Taylor v. Morgan, 3 Watts, 333; and the court misled the jury. The book was but a copy; and corporation books are not evidence against strangers, 12 Serg. & Rawle, 49; Cooper v. Maule, 4 Yeates, 34. [Rogers, J. — Are you not in the situation of the corporation?]

Gibbons, contrà.—There is a marked difference between the articles in this case and in that in 8 Watts & Serg. 232; there is no right reserved to forfeit the $10 paid on account of the purchase money, but merely the per centage on the freight. Had we entirely paid for the boats, it clearly would not be considered executory in favour of the party in default for not transferring; the only question then is, whether we had paid; and the jury found we had; was the evidence proper? It was not to alter a written contract, but to prove another, or merely as notice of our intent to do what the company could not have prevented — give notice of our design to credit our purchase account with other debts due us by the same parties, under the same agreement, Heines v. Barnitz, 8 Watts, 39; and for this the evidence was competent, Bremer v. Howson, 11 Serg. & Rawle, 352. That we had clear right, having done all on our part, and having possession also, and nothing but a formal transfer being required, is shown in Scott v. Wells, 6 Watts & Serg. 366.

March 31. SERGEANT, J.

In the case of The Lehigh Company v. Field, 8 Watts & Serg. 232, the question arose upon a contract made by that company for the boating of coal, similar in substance to the present: and it was there held that the agreement was only executory, that the master had possession of the boat but as servant of the company, the property remaining in them until the price was paid. This being the law, it is clear that in the present instance the boat remained the property of the Sugar-Loaf Company, and the party purchasing from them, unless by the retention of freight, demurrage, or otherwise, the price agreed upon by the contract had been paid. The plaintiff alleges that this was the case: the defendants deny it, and the court in one part of their charge leave this to the jury. But in a...