Hoofsmith v. Cope

• Decision Date: 02 January 1841
• Citation: 6 Whart. 53
• Parties: HOOFSMITH, and Others v. COPE.
• Court: Pennsylvania Supreme Court

6 Whart. 53

HOOFSMITH, and Others v. COPE.

Supreme Court of Pennsylvania.

January 2, 1841

IN ERROR.

1. To render a bill of sale of goods valid as against creditors there must be an accompanying, actual, visible, and notorious possession in the vendee.

2. Where A. living in the country, and being indebted to B. and C., merchants in Philadelphia, made an assignment to them of his stock of goods in payment of his debt; and by an agreement between them A. was to remain in possession as clerk to B. and C., who took a lease of the premises, and a few days afterwards B. and C. made a bill of sale of the goods to D., who took possession of the goods, and, while in his possession, the goods were levied upon and removed by the sheriff upon an execution at the suit of a creditor of A.; it was held in trespass brought by D. against the sheriff and the execution creditor, & c., that the possession of the goods might be lawfully taken by D. notwithstanding any dissent by A., and that evidence was not admissible to show that no consideration passed from D. to B. and C.

3. In trespass against a sheriff and execution creditor for taking goods of the plaintiff, or an execution against another evidence is not admissible on the part of the defendants to prove that the goods were returned by the sheriff to the place from which they were taken a few days afterwards.

THIS was a writ of error to the Court of Common Pleas of Monroe County, to remove the record of an action of trespass vi et armis et de bonis asportatis & c., brought by John Cope against Peter Hoofsmith, Joseph Teel, Charles Sprenger, and George Murphy.

On the trial before JESSUP, (President) on the 3d of September 1840, it appeared that Charles Sprenger, one of the defendants, had previously to the 13th of February, 1839 kept a store in Monroe county, and on that day made an assignment of all his goods & c. to Kreider and Hanse merchants in Philadelphia, in payment of a debt due to them. On the next day an agreement was entered into between them, by which Sprenger was to remain in possession as clerk to Kreider and Hanse, who took a lease of the store. On the 16th of February Kreider and Hanse executed a bill of sale of the goods to Cope, the plaintiff, who proceeded on the 18th of the same month to the place, and requested Sprenger to deliver up possession, which, according to the evidence, he hesitated doing. Cope then put a man in possession, and the next day took an inventory of the goods, and removed part of them to a neighbouring place, when the sheriff, Teel, appeared with an execution issued at the suit of Hoofsmith and Murphy, and took the goods, as well those which had been removed by Cope as those which remained in the store. This action was then brought to recover damages for the taking.

The following points of evidence were ruled on the trial.

1. The defendants offered to prove that no consideration passed from Cope to Kreider and Hanse for the transfer of the goods in Sprenger's store.

This was objected to on the part of the plaintiff, and the court refused to admit the evidence.

2. The defendants offered to prove that the goods were returned by the sheriff to the place from which they were taken in the same condition as when taken, within ten days after they were taken.

This also was objected to and overruled.

The counsel for the defendants requested the court to charge the jury as follows:

" 1. That if the jury believe that Sprenger remained in the possession of the store after the 13th of February, 1839, and traded in it as before, the bill of sale made on that day is fraudulent and void as to creditors.

2. and 3. That a transfer of personal property, unaccompanied by a corresponding change of possession is void as against creditors, and that a conveyance of his goods and chattels after judgment obtained against him, wears the appearance of fraud; and such conveyance is absolutely void if the possession remain in the debtor.

4. If the jury believe that Sprenger remained in the possession of the store after the transfer on the 13th of February, 1839, such possession makes this conveyance void and fraudulent; and Cope claiming under Kreider and Hanse can have no stronger or better claim than they had.

5. If the jury are satisfied that Sprenger had the possession of the store after the 13th of February, 1839, then the plaintiff cannot recover in this suit.

6. That if the jury believe Cope took possession without and against the consent of Sprenger, then his proceedings were illegal and void, and he cannot recover.

7. That if the jury believe Cope took possession of said goods without and against the consent of Sprenger, then such taking, being illegal, it cannot be taken as a delivery of the goods and he cannot recover.

8. That if the jury believe the transfer of these goods by Kreider and Hanse to Cope was not for a valuable consideration, but a mere artifice to avoid or evade their contract with Sprenger, then in either case the plaintiff cannot recover.

9. That if the jury believe, that Kreider and Hanse had not the lawful possession of these goods, then they could not deliver possession to Cope so as to enable him to sustain this action.

10. If the jury believe, that Kreider and Hanse obtained this bill of sale on their promising to Sprenger a compensation as clerk, & c. then Kreider and Hanse could not avoid their contract without Sprenger's consent, and their sale to Cope, if good at all, must be taken as subject to and controlled by their agreement with Sprenger, and then Cope cannot recover."

The learned judge charged the jury as follows:

" This is an action of trespass, to recover from the defendants damages for taking and conveying away a quantity of store goods, and other property, formerly belonging to Charles Sprenger, one of the defendants. The case, as given us by the evidence, is, with little variance, as follows: In the fall of 1838, and previously, Sprenger had become indebted to Kreider & Hanse, of Philadelphia, in a considerable sum of money, which, with its interest, on the 13th of February, 1839, amounted to $1448 09. Kreider & Hanse, desiring to secure their debt, sent one of their clerks, Frederick C. Kreider, who is the witness in this case, to Chesnut Hill for that purpose. He came to Sprenger's on the 13th of February, 1839, and obtained from Sprenger a bill of sale of the goods claimed in this case, and which are enumerated and described in the inventory which makes part of that instrument. On the 14th of the same month, he took a lease of the store in which the goods were kept by Sprenger, and engaged him to serve Kreider & Hanse, as their clerk, in the selling of the goods and closing the business, at the rate of $400 per year. This lease, and the agreement for the services of Sprenger, as clerk, formed no part of the consideration of the transfer of the goods. The evidence being that the indebtedness of Sprenger to Kreider & Hanse was the only consideration. These arrangements vested the right to this property absolutely in Kreider & Hanse. They, as the owners, had a right at any time to enter the store, and take possession of the goods: as between them and Sprenger, he was only their servant, bound to comply with their directions, and could not resist either their entry upon the premises, or taking actual possession of all the property, contained in the bill of sale. They had an undoubted right, to sell the property, and to authorise their vendee to reduce it to his actual possession.

On the 16th of February they did thus sell the...