Lehr v. Brodbeck

• Decision Date: 19 July 1899
• Docket Number: 140
• Citation: 192 Pa. 535,43 A. 1006
• Parties: Kizzie Lehr, Appellant, v. Andrew R. Brodbeck
• Court: Pennsylvania Supreme Court

43 A. 1006

192 Pa. 535

Kizzie Lehr, Appellant, v. Andrew R. Brodbeck

No. 140

Supreme Court of Pennsylvania

July 19, 1899

Argued May 17, 1899

Appeal, No. 140, Jan. T., 1899, by plaintiff, from judgment of C.P. York Co., on verdict for defendant. Reversed.

Trespass to recover damages for the alleged wrongful sale of plaintiff's goods.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

[There was no delivery, according to the testimony in this case, of these farm implements. They were used on the premises as they were before, and they were used there by Charles A. Lehr as before the sale. The horses remained in the stable without any visible change of ownership, or possession by the plaintiff. The implements were on the place as they were before; the tobacco remained in the shed where it was, -- all on the premises where it was before, without apparently being taken into the possession of the plaintiff. As far as the evidence goes, there was no change, or visible change, of this property, -- nothing to show that it passed into her possession, or that she exercised any exclusive control of this property, that she alleges she bought from her brother after the sale.] . . . .

Plaintiff's points and the answers thereto among others were as follows:

1. The plaintiff, having sworn that she purchased the goods and personal property of Charles A. Lehr previous to the sheriff's levy and sale, and the same remained hers to the date of the sheriff's sale, and that the said Charles A. Lehr after said sale exercised no acts of ownership about the same; and it further appearing from the evidence of the plaintiff, if believed, that she had for ten years been lessee of the house and garden on the premises in question it is for the jury to find from all the evidence in the case whether the alleged sale of the personal property of Charles A. Lehr to the plaintiff was bona fide, and whether or not there was a delivery of the goods in question to the said plaintiff before the sheriff's levy on the same. Answer: This point is refused. [1]

3. The verdict of the jury should be for the plaintiff for the value, on the day of sale, of each and every article of personal property sold by the defendant, which the jury find from the evidence was then and there in the possession of Kizzie Lehr, and was her property before the levy, whether bought from Charles A. Lehr or any one else. Answer: This point is refused, because it includes the property bought from Charles A. Lehr, including the horses, farming utensils, posts, rails, tobacco and other articles which, in the opinion of the court, is not proved to have been delivered to the plaintiff, and over which she exercised exclusive control, in the manner I have already stated; and upon which the court has already instructed the jury she cannot recover for in this case. [2]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned among others were (1-3) above instructions, quoting them; (4) instruction copied in opinion of Supreme Court, quoting it; (7) refusal of new trial; (8) in entering judgment for defendant.

The judgment is reversed and a venire facias de novo awarded.

N. M. Wanner, with him E. D. Bentzel, for appellant. -- The court had no authority to impose conditions as to a new trial: Bradwell v. Ry. Co., 139 Pa. 404; Reno v. Shallemberger, 8 Pa.Super. 439.

Whether or not under the particular circumstances plaintiff's possession was bona fide and sufficient as against the creditors of Charles A. Lehr was a question of fact for the jury, under the authorities: Crawford v. Davis, 99 Pa. 576; McGuire v. James, 143 Pa. 521; Evans v. Scott, 89 Pa. 136; Renninger v. Spatz, 128 Pa. 524; Pearson v. Carter, 94 Pa. 156; Smith v. Crisman, 91 Pa. 431; McMarlan v. English, 74 Pa. 296.

James G. Glessner, for appellee. -- The vendor continuing in possession under the transaction was fraudulent per se and void against a bona fide creditor, without notice, who levied on an execution. And any neglect in leaving the vendor in possession is fraudulent within the statute of 13 Eliz.: Clow v. Woods, 5 S. & R. 275; Young v. McClure, 2 W. & S. 147; McBride v. McClelland, 6 W. & S. 94; Weller v. Meeder, 2 Pa. Superior Ct. 488; Pressel v. Rice, 142 Pa. 270; Lautner v. Kann, 184 Pa. 334; Berwald v. Ray, 8 Pa.Super. 365.

The court did not abuse its discretion in refusing a new trial under the circumstances: Campbell v. Sproat, 1 Yeates, 327; Turnbull v. O'Hara, 4 Yeates, 446; Andrews v. Andrews, 5 S. & R. 374; Christner v. John, 2 Pa. Superior Ct. 78; Sergeant v. Ingersoll, 15 Pa. 343; McBride v. Daniels, 92 Pa. 332; Crew v. McCafferty, 124 Pa. 200; Devinney v. Reeder, 1 Penrose & Watts, 400; Com. v. Roddy, 184 Pa. 292.

The case of Bradwell v. Railway Co., 139 Pa. 404, cited by appellant, does not apply to this case. There the verdict was in favor of the plaintiff and there was error in the rulings of the court on the law of the case; here it is the reverse.

Before GREEN, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

This is an action of trespass against defendant, sheriff of York county, to recover damages for the alleged wrongful seizure and sale of her goods on an execution against her brother, Charles A. Lehr.

The farm on which the property, live stock, farming implements, grain in the ground, etc., was seized, belonged to the brother. Both were single. The evidence showed that they went upon the farm in 1886, she keeping house for him until the date of the sale. At the time they went upon the premises, by a written agreement, the brother leased to her the house, yard and garden; she to furnish board and lodging for all the help he might require upon the farm; further, that she should keep upon the farm, cows, hogs, chickens and turkeys; further, she should receive from him the sum of $12.00 per month. It was further stipulated that at any time her compensation amounted to a sufficient sum, she should have the right to purchase all the personal property on the premises and hold the same as her own.

From the date of this agreement, for about ten years, the brother and sister lived upon the farm under the terms of it. In October, 1896, she claimed there was due her from him under it, $1,440; and further, that in October, 1891, she had loaned to him of her own money, $986, and had taken his receipt therefor, both sums with interest making $3,388.50; and that in payment of this debt he had sold and delivered to her by bill of sale in writing all the personal property upon the farm, not already owned by her, including grain in the ground and tobacco. The plaintiff claimed, as belonging to her under the terms of the first agreement, made when they went into possession, and as purchased from others by herself, certain live stock and poultry of the value of $335.

To April term, 1895, one George Rutter obtained a judgment against Charles A. Lehr, on which, to January term, 1897, he issued execution, levied on all the property on the farm; the sheriff sold the same at public sale; before sale he was notified by the sister that the property belonged to her. She then brought this action. At the trial in the court below three questions arose on the evidence:

1. Was the sale by the brother to her actually fraudulent?

2. If not fraudulent in fact, was it against creditors constructively fraudulent, for want of such change of possession as required by law in a sale of chattels?

3. What articles were the sister's, not purchased from the brother under the bill of sale, and what was their value?

As to the goods purchased from her brother under the bill of sale the court instructed the jury thus: "So in this case, there was no visible change of possession, either actual, by notice, sign, symbol or otherwise; and the property continued in the possession of Charles A. Lehr, on the property where he alleged the sale took place. And, as a matter of law, we instruct you that the plaintiff cannot recover for any articles which she alleged she purchased from Charles A. Lehr, her brother, and which remained in his possession, excepting the growing grain and manure. The posts and rails, and the farming implements and the horses, and all the other articles, were not sufficiently, in the opinion of the court, delivered to the plaintiff, and she did not exercise exclusive control over the same, in the opinion of the court, to justify the matter being submitted to the jury, and to vest the property in her. Therefore, we instruct the jury that you cannot allow for any articles which she alleged she purchased from her brother, excepting the grain in the ground, the manure, and the cooking stove, which I understood was in the house, and we will take it for...