Huntzinger v. Harper

• Decision Date: 02 February 1863
• Citation: 44 Pa. 204
• Parties: Huntzinger v. Harper.
• Court: Pennsylvania Supreme Court

44 Pa. 204

Huntzinger v. Harper.

Supreme Court of Pennsylvania.

February 2, 1863

1863

ERROR to the Common Pleas of Schuylkill county.

This was an action of trespass vi et armis de bonis asportavit, brought in the court below, by John C Harper against Jacob Huntzinger, Jr., for taking away ten barrels of oil, claimed by the plaintiff.

All the material facts of the case, together with the errors assigned to the admission and rejection of evidence, and the charge of the court below (PARRY, J.) (under which there was a verdict and judgment for plaintiff), are fully stated in the opinion of this court.

F W. Hughes and F. P. Dewees, for plaintiff in error.

Campbell & Smith and John Bannan, for defendant in error.

The opinion of the court was delivered, February 2d 1863, by STRONG, J.

The defendant below, now plaintiff in error, claimed title to the oil under two executions, one against Henry C. Harper, and the other against Cornelius Harper. The plaintiff below claimed under a sale made to him by Henry before either of the executions were issued. The main question presented on the trial was, whether the sale to the plaintiff was fraudulent or not. The jury found that it was not. It was in proof that the oil had been purchased in New York from Root Rust & Clark, by Henry Harper, for his brother Cornelius, who had been engaged in mining, and that it was shipped consigned to Cornelius, under an arrangement that he should give his note for it at four months. The note was to be taken and returned to the vendors by Henry C. Harper. On the 17th of August 1858, before the oil arrived at its place of destination, Cornelius Harper having stopped mining, Henry sold it to the plaintiff below, and forwarded his note for the price to the vendors in New York. After its arrival at the port of delivery it was levied upon under an execution against Henry Harper, and some time afterwards, by virtue of an execution against Cornelius Harper. If these facts were established, it is plain that the oil was not subject to levy in execution either against Henry Harper or Cornelius Harper not as Henry's property, for it was not sold to ??im, and not as Cornelius Harper's, for though the contract of ??ale was with him, he never complied with the condition precedent that he should give his note, and to him there was no delivery. It remained the property of Root, Rust & Clark and Henry Harper's sale to the plaintiff was one which they could and did ratify. But the defendant below contended that the oil was purchased by Henry Harper for himself, and that the sale to the plaintiff was fraudulent and void, having been made to defraud his creditors and those of Cornelius. To show this he offered to prove that Henry had owned a colliery in 1857, and that being insolvent he made a fraudulent sale thereof to E. & E. Hammer more than a year before the oil was purchased; that E. & E. Hammer subsequently made another fraudulent sale of it to Cornelius Harper, a person of no means, and that Henry continued to conduct and manage it...