Ferguson v. Lauterstein

• Decision Date: 26 March 1894
• Docket Number: 336
• Citation: 28 A. 852,160 Pa. 427
• Parties: Ferguson v. Lauterstein, Appellant
• Court: Pennsylvania Supreme Court

28 A. 852

160 Pa. 427

Ferguson v. Lauterstein, Appellant

No. 336

Supreme Court of Pennsylvania

March 26, 1894

Argued February 14, 1894

Appeal, No. 336, Jan. T., 1894, by defendant, Isidore Lauterstein, from judgment of C.P. Schuylkill Co., Jan. T 1890, No. 166, on verdict for plaintiff, P. J. Ferguson. Affirmed.

Replevin to recover possession of furniture. Before BECHTEL, J.

At the trial, it appeared that, on Aug. 27, 1887, plaintiff, who was the owner of the hotel building known as the Ferguson House in Shenandoah, purchased the outstanding lease of his tenant O. B. Keiser, and at the same time purchased from him the entire furniture contained in the hotel, and necessary for the purposes of a hotel, plaintiff going from room to room and making an inventory of their several contents. He received from Keiser the keys belonging to the establishment and subsequently, on the same day, executed a lease of the hotel and furniture to Crinnian Brothers, who entered into possession, plaintiff delivering to them the keys. The last paragraph of the instrument of lease provides for the leasing of the furniture and the terms thereof as follows: "Also the party of the first part hereby leases all the household furniture now on the premises and being used in the said 'Ferguson House,' at the yearly rental of six per cent on four thousand one hundred ($4,100) dollars, . . . the party of the second part having the right and privilege of purchasing the same for four thousand one hundred ($4,100) dollars within the term of five years, . . . when a bill of sale in due form of law will be made and executed," etc. The Crinnian Brothers remained in actual possession of the furniture in question down to Dec. 11, 1889, during which period they paid plaintiff no rent for the use of the furniture nor any portion of the $4,100, the purchase price thereof. On Dec. 11, 1889, the furniture in the hotel was sold by a constable on an execution issued on a judgment recovered against the Crinnian Brothers by one of their creditors, and the furniture in the hotel was sold. There was evidence that at the beginning of the sale a notice was read to all present, on behalf of plaintiff, that the goods about to be sold were not the property of the Crinnian Brothers, but the property of plaintiff, and that purchasers would acquire no title thereto.

Defendant purchased the furniture and subsequently removed it.

Defendant's points were among others as follows:

"3. The action of replevin is a possessory action, and the plaintiff must show that he had a right of immediate possession to the articles replevied at the time the writ was issued. As the plaintiff has failed to show such right of possession in himself at the time this writ issued he cannot recover, and the verdict of the jury must be for the defendant." Answered with 5th point. [1]

"4. As the undisputed evidence in this case shows that the right of possession to the articles replevied in this case at the time this writ issued, if not in the defendant, was in the Crinnian Brothers, under the contract offered in evidence by the plaintiff himself, the plaintiff cannot recover in this case, and the verdict must be for the defendant." Answered with 5th point. [2]

"5. As the undisputed evidence in this case shows that the plaintiff had neither the possession, nor the right of possession, to the goods in controversy at the time the defendant bought and removed the same from the hotel, nor at the time he brought this suit, he cannot recover in this case, and the verdict must be for the defendant. Answer: We will answer these points together. They are of much the same nature. They ask the court to direct a verdict for this defendant, and to say that certain matters are established by what is termed undisputed evidence in this case. We decline to say that you should or must find a verdict for this defendant. Upon the contract we say that under the written contract or lease between Ferguson and Crinnian Brothers, we believe that Ferguson had such title, and such right of possession in himself, and through the Crinnian Brothers, as would enable him to protect the personal property, and prevent it being removed from the hotel, under a purchase as the property of the Crinnian Brothers, especially if you find that the purchaser had notice, before he purchased, that the property was not the property of Crinnian Brothers, but the property of P. J. Ferguson. Of course this is upon the proposition that you find that the entire transaction was honest, bona fide and fair, as we have heretofore stated to you, and not intended to hinder and delay, and cheat and defraud the creditors of Crinnian Brothers." [3]

7. Request for binding instructions. Refused. [4]

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-4) instructions, quoting them.

Judgment affirmed.

A. W. Schalck, for appellant. -- Plaintiff's own case shows conclusively that, on Dec. 11, 1889 (the date of the constable's sale), the furniture in question was in the exclusive control and possession of the Crinnians; and that neither on Dec. 11th nor 12th, 1889, did plaintiff have the possession, or the right of possession, exclusive or otherwise, to the goods in question.

The right of possession in plaintiff necessary to sustain replevin is a present and existing right, and not one to arise on the performance or non-performance of some condition: 20 A. & E. Ency. L. 1050, 1055-6; Gordon v. Harper, 7 T.R. 9; Bigelow's L.C. on Torts, 424, 431; Pain v. Whittaker, R. & M. 99; 21 E.C.L. 710; Smith v. Plomer, 15 East, 607; Hilliard on Torts, ed. 1867, p. 20; Wheeler v. Train, 3 Pick. 257; Collins v. Evans, 15 Pick. 63; Lester v. McDowell, 18 Pa. 91; Rogers v. Arnold, 12 Wend. 30; Reinheim v. Hemingway, 35 Pa. 432; R.R. v. Ellsey, 85 Pa. 283; Mathias v. Sellers, 86 Pa. 486; Weed v. Hall, 101 Pa. 595.

Ferguson v. Rafferty, 128 Pa. 337, was not the case of lessor and lessee, or of the delivery of the furniture, etc., by the lessor to his tenant or lessee, or of the exclusive possession of the same by the latter as such lessee.

In Harlan v. Harlan, 15 Pa. 507, the syllabus expressly has this proviso, "provided he (plaintiff) had the right of possession," and exactly the same proviso, and the same language, appears in the syllabus of Miller v. Warden, 111 Pa. 300. See also Morris on Replevin, 68.

J. H Pomeroy, S. G. M. Hollopeter with him, for appellee. -- It is well settled as a general principle, that in Pennsylvania replevin lies wherever one man claims goods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified,...