Goss Printing Press Company v. Jordan

• Decision Date: 07 October 1895
• Docket Number: 24
• Citation: 32 A. 1031,171 Pa. 474
• Parties: Goss Printing Press Company, Appellant, v. Francis Jordan
• Court: Pennsylvania Supreme Court

32 A. 1031

171 Pa. 474

Goss Printing Press Company, Appellant, v. Francis Jordan

No. 24

Supreme Court of Pennsylvania

October 7, 1895

Argued June 3, 1895

Appeal No. 24, May Term, 1895, by plaintiff, from judgment of C.P Dauphin County, March Term, 1895, No. 92, on verdict for defendant. Reversed.

Sheriff's interpleader to determine ownership of a printing press. Before SIMONTON, P.J.

At the trial it appeared that the Goss Printing Press Company entered into a contract with W. F. Jordan to build a printing press for Jordan on the latter's premises. The title of the press to remain in the Goss Printing Press Company until the press was paid for on acceptance as satisfactory. The press was built in Chicago, shipped by railroad to Harrisburg, consigned to the Telegram Publishing Company (which was Jordan) and received there by plaintiff's workmen and set up in Jordan's building. But before the expiration of the thirty days allowed for trial, and before the press had been accepted, or any payment made on account thereof, the parties entered into a second contract in the form of a lease with an alternative conversion into sale on compliance with certain conditions. Some time after the second contract was made the sheriff levied upon the press as the property of Will F. Jordan, under an execution upon a judgment in favor of Francis Jordan, and this feigned issue was awarded to determine the title to the property.

The court ruled that before the execution of the second contract the property had passed into the possession of the purchaser W. F. Jordan, to such extent that his creditors had a right to levy upon it, and gave binding instruction for the defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned, among others, was above instructions.

Judgment reversed and venire de novo awarded.

S. J. M. McCarrell, Jas. A. Stranahan and Robt. Snodgrass with him, for appellant. -- There was no delivery to Jordan which would pass the title so as to enable his creditors to seize and sell the property: Welsh v. Bell, 32 Pa. 12.

It is well settled that a change in the location of the property is not always necessary or even practicable. Due regard must be had to the character of the property, its intended use, the nature of the transaction, position of the party, etc.: McKibbin v. Martin, 64 Pa. 352; Garretson v. Hackenberg, 144 Pa. 107.

The parties had a right under the circumstances to change the contract: 15 Am. & Eng. Ency. of Law, 253; 2 Am. & Eng. Ency. of Law, 40.

The contract in this case is modeled after, and follows almost literally the form of contract which was the subject of inquiry in Rowe v. Sharp, 51 Pa. 26.

The contract is a valid one: Myers v. Harvey, 2 Pa. 463; Clark v. Jack, 7 Watts, 375; Edward's App., 105 Pa. 103; Wertz v. Collender, 20 W.N.C. 59; Ditman v. Cottrell, 125 Pa. 606; Brown Bros. & Co. v. Burlington, 163 Pa. 76.

Louis W. Hall, Charles L. Bailey, Jr., and M. W. Jacobs with him, for appellee. -- Possession of personal property is the great mark of ownership. It is almost the only index which the world in general has to look to: Martin v. Mathiot, 14 S. & R. 214.

The first contract is the ground of appellee's title: Ott v. Sweatman, 166 Pa. 217; 8 Am. & Eng. Ency. of Law, 426; 21 Am. & Eng. Ency. of Law, 629; Brunswick v. Hoover, 95 Pa. 508.

The contract of November 12 was to cover a sale: Peek v. Heim, 127 Pa. 500; Thompson v. Paret, 94 Pa. 275; Forrest v. Nelson, 108 Pa. 481; Com. v. Harmel, 166 Pa. 89; Rowe v. Sharp, does not control this case: Brunswick & Co. v. Hoover, 95 Pa. 508; Wagner v. Com., 16 W.N.C. 75; Cooper v. Whitmer, 18 W.N.C. 376; Enlow v. Klein, 79 Pa. 488; Crist v. Kleber, 79 Pa. 290; Chamberlain v. Smith, 44 Pa. 431; Becker v. Smith, 59 Pa. 469; McCullough v. Porter, 4 W. & S. 177; King v. Humphreys, 10 Pa. 217; Stadtfeld v. Huntsman, 92 Pa. 53; Farquhar v. McAlevy, 142 Pa. 233.

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

OPINION

MR. JUSTICE MITCHELL:

This case hinges on the question of delivery. The first contract was beyond dispute one of sale, and although the title would not have passed between the parties until full performance of the conditions, yet after delivery it would have been conclusively held to have passed in favor of creditors of the vendee. Equally beyond dispute, the second contract was one of bailment in which the title did not pass at all as against the bailor, either in favor of the bailee or his creditors. The question therefore is whether the circumstances under which the second contract was made were such as to deprive it of the force and validity it would have had if it had been made in the first instance. And of these circumstances the controlling one is whether or not there had been a delivery. If there had been, then all our cases agree that without further change of possession, it was too late for any change of their contract by the parties to affect the rights of an execution creditor. If on the other hand there had been no delivery the contract was entirely executory and could be changed at will by the parties.

Delivery does not consist in the mere transfer of location or custody of property. There must be the mind of both parties concurring in the transfer in accordance with the contract, the intent of one to deliver and the other to receive. Thus custody obtained surreptitiously or by trick or fraud does not amount to delivery, not merely because fraud vitiates everything into which it enters, but because there is no meeting of the minds of the parties. If goods be bought in a store for cash, and wrapped up and handed across the counter to the purchaser, there is no delivery unless the money is paid, and so even if the goods are sent to the purchaser's home in charge of a clerk who is to get cash on delivery, merely handing them to the purchaser to unwrap for examination will not be delivery. "In order to make a sale which is conditional as to the parties, absolute as to creditors, there must be a delivery of the goods in pursuance of the contract, for without this there can be no present sale, and an agreement of sale without an accompanying transfer, amounts to nothing more than a contract to sell at a future time, or upon the fulfillment of stipulated conditions. Furthermore, the delivery of possession alone though a material indicium of ownership does not of itself constitute a sale, for the goods may be delivered in bailment, as in loan or hiring. There must in addition to the possession, be at least such a conditional or qualified title passed to the...