Kelley Springfield Road Roller Co. v. Schlimme
| Decision Date | 16 March 1908 |
| Docket Number | 280,279 |
| Citation | 69 A. 867,220 Pa. 413 |
| Parties | Kelley Springfield Road Roller Company, Appellant, v. Schlimme |
| Court | Pennsylvania Supreme Court |
Argued February 3, 1908
Appeal, Nos. 279 and 280, Jan. T., 1907, from orders of C.P Montgomery Co., Oct. T., 1906, Nos. 150 and 151, refusing to take off nonsuits in cases of the Kelley Springfield Road Roller Company v. John Schlimme and the Kelley Springfield Road Roller Company v. Schlimme Construction Company. Affirmed.
Assumpsit on promissory notes.
The facts are stated in the opinion of the Supreme Court.
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was refusal to take off nonsuit.
The judgment of the court below in each case is affirmed.
G Rodman Fox and N. H. Larzelere, for appellant. -- In the case at bar, there was no rescission of the contract, for default in payment, during the terms of the lease, but there was an express carrying out of their contract after the expiration of the rental period, and they had the right to recover upon the notes which were given as collateral security for the payment of the rent, and in all good conscience should be paid what their contract called for: McGrann v. Pittsburg & Lake Erie R.R. Co., 111 Pa. 171.
Louis M. Childs, for appellees. -- The contract is not a contract of leasing: Rowe v. Sharp, 51 Pa. 26; Myers v. Harvey, 2 P. & W. 478.
After the machine was taken back plaintiff had no right to sue on the notes: Campbell Printing Press & Mfg. Co. v. Hickok, 140 Pa. 290; Seanor v. McLaughlin, 165 Pa. 150; Durr v. Replogle, 167 Pa. 347; Kirkwood's Assignment, 2 Pearson, 257.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The above cases were tried together in the court below, and as they arise out of the same transaction and the decision of the two cases depends on the same legal principle, we will dispose of them together.
On or about April 15, 1904, the plaintiff company delivered to the defendant, John Schlimme, two steam road rollers. They remained in his possession until November 1, 1904, when a written contract was entered into between the plaintiff company and the Schlimme Construction Company for the rollers. This contract was in the shape of a written offer by the defendant company, and an acceptance by the plaintiff company. It was called a lease. The defendant company was to receive the rollers, and pay for their use and hire for a period of thirteen months the sum of $5,400, payable, except $250 cash in hand, in thirteen notes, one due each succeeding month. The monthly payments, secured by notes, were as follows: the first, third and fourth months, $200; the second month, $ 150; the fifth to the twelfth month inclusive (8 months), $500; and the thirteenth month, $400. The notes were to draw interest at the rate of six per cent.
The contract provided that the possession and ownership of the rollers should not pass from the plaintiff company, and "at the expiration of this lease they shall be returned to them." It also provided that in case the defendant company failed to protect the machines "or in case any of the said notes are not paid at maturity, or within thereafter," the plaintiff company "shall have the right to enter upon the premises where said rollers may be located, and take possession of, and remove same without trespass."
The agreement concluded with a provision that if the defendant company paid all the notes, it should have the privilege of purchasing the rollers, "and that for the further consideration of one dollar, you will sell and deliver said rollers to us and make a bill of sale for the same."
The contract was signed by the Schlimme Construction Company, and the notes were signed by John Schlimme. The cash in hand was not paid nor were any of the notes paid. No money whatever was paid by Schlimme or the construction company to the roller company on the contract. The rollers were kept by the construction company until on or about September 27, 1906, when, according to the testimony of the plaintiff's sales agent, the plaintiff entered the premises of the construction company and took possession of the rollers, "in exercising of the rights reserved in this contract, whatever they may be." So far as the evidence discloses, the plaintiff still retains possession of the rollers and claims them as its property.
These two suits were brought by the Kelley Springfield Road Roller Company to recover the $5,400 and its interest, one of the suits being brought on the notes against John Schlimme; the other, on the contract against the Schlimme Construction Company. On the trial, the court granted a nonsuit in each case which it subsequently refused to take off. The plaintiff has taken these appeals.
The rights of the parties in these actions depend upon the contract between the plaintiff company and the construction company, and the subsequent action of the parties in pursuance thereof. The contract itself shows that the $5,400 required to be paid for the use of the rollers constituted the full value of the rollers. That appears conclusively from the stipulation in the contract by which the plaintiff company was to sell and deliver the rollers to the construction company on the payment of that sum and an additional nominal consideration. While the contract provides that the sum named shall be "for the use and hire of the said steam road rollers for a period of thirteen months," yet the clause providing for the sale determines the fact that the sum was the full consideration for the machines. The rental value fixed by the contract was, in the judgment of the parties, the market value of the rollers when the construction company took possession of them.
The contract may be regarded as dual: (1) a hiring or bailment, and (2) a contract of sale. The ultimate purpose of the agreement was a sale of the rollers to the construction company. If the latter complied with the terms of the contract as to payment, the title of the machines passed to the construction company, and it could demand of the plaintiff a bill of sale transferring the title to it. The possession of the machines passed to the construction company upon the execution delivery of the contract, and it had a right to the possession of the machines so long as it complied with the terms of the agreement, that is, made the payments stipulated in the contract. The title would follow the possession as soon as all the installments of the consideration money were paid, and then an indefeasible title to the machines would become vested in the construction company.
The so-called lease or bailment was to preserve the ownership of the bailor until the full consideration money was paid. The plaintiff company did not intend the title to the machines to pass from it until that event had occurred, and, under our decisions, the contract entered into by the parties was legitimate and legal for such purpose.
By the provisions of the agreement, it will be observed that "at the expiration of this lease they (the rollers) shall be returned to them (the plaintiff)." If for any reason the sale had not been consummated, as...
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