National Cash Register Co. v. Shurber

• Decision Date: 11 October 1909
• Docket Number: 17-1909
• Citation: 41 Pa.Super. 187
• Parties: National Cash Register Company v. Shurber, Appellant
• Court: Pennsylvania Superior Court

41 Pa.Super. 187

National Cash Register Company v. Shurber, Appellant

No. 17-1909

Superior Court of Pennsylvania

October 11, 1909

Argued May 10, 1909

Appeal by defendant, from judgment of C.P. Armstrong Co.-1907, No 148, on verdict for plaintiff in case of National Cash Register Company v. George Shurber.

Replevin to recover a cash register. Before Patton, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Orr Buffington, of Buffington & Gilpin, and C. E. Harrington, for appellant. -- The appellant contends that the court below should have interpreted the paper itself under which delivery was made as a conditional sale. Even if this is not correct it was the plain duty of the court to submit the character of the paper with the oral and other written evidence to the jury as a question of facts: Ladley v. U.S. Express Co., 3 Pa.Super. 149; Farquhar v. McAlevy, 142 Pa. 233; Gernert v. Knerr, 3 Pa.Super. 47; Laundry Machinery Co. v. Fromuth, 15 Pa.Super. 339; Hill v. Mfg. Co., 3 Pa.Super. 398; Porter v Duncan, 23 Pa.Super. 58; Miller v. Browarsky, 130 Pa. 372; Car Co. v. Altoona, etc., R. R. Co., 218 Pa. 519; Wolff Dryer Co. v. Bigler & Co., 192 Pa. 466; Penna. R. R. Co.'s App., 86 Pa. 80.

The writing of the letters designating this register as having been sold caused the mischief in this case, and even if it was a mistake to so designate it, yet it was the act of the appellee and he must abide by it: Vanderslice v. Ins Co., 13 Pa.Super. 455; O'Connor v. Clark, 170 Pa. 318.

The court erred in the refusal of appellant's first point which allowed the appellee to recover without having registered under the provisions of the Act of April 22, 1874, P. L. 108: Wolff Dryer Co. v. Bigler & Co. 192 Pa. 466.

H. L. Golden, with him Harry C. Golden, for appellee. -- The learned court below properly construed the contract involved in this case as a contract of bailment: American Car & Foundry Co. v. Altoona & Beech Creek Railroad Co., 218 Pa. 519; Jones v. Wands, 1 Pa.Super. 269; Potter v. Stetson & Co., 11 Pa.Super. 627; Miller v. Douglas, 32 Pa.Super. 158; Painter v. Snyder, 22 Pa.Super. 603.

The defendant acquired no title by virtue of his purchase at the constable's sale: Jones v. Wands, 1 Pa.Super. 269; Potter v. Stetson & Co., 11 Pa.Super. 627.

The plaintiff, a foreign corporation, can maintain an action of replevin for the recovery of its property from defendant, with whom it has no contractual relation, even though it (the plaintiff) has not complied with the act of April 22, 1874, and other registration or taxing acts of a similar nature: King Optical Co. v. Royal Ins. Co., 24 Pa.Super. 527; Berry Hill Mineral Spring Co. of Virginia v. Pile et al., 17 Pa. Dist. 246.

Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.

OPINION

RICE, J.

The court was right in its construction of the writing under which the chattel in dispute was delivered to Vergos and Kyramis. It contained all the essentials of a contract of bailment, and went beyond the indispensable essentials in including the express agreement of the bailees to surrender the chattel to the bailor in good condition at the expiration of the lease, which was for seven months at a stipulated rent. Upon principle, and according to the doctrine of numerous cases, the facts that the bailees, as stipulated in the writing, deposited $ 15.00 as partial security for the fulfillment of the agreement, which was to be returned to them upon the surrender of the chattel provided the terms of the lease had been complied with; that they gave their promissory note, as collateral for the rent, payable in seven monthly installments; that the amount of this note and the deposit of $ 15.00 ($ 85.00] was the agreed value of the machine; and that the agreement gave the lessees the option, after the expiration of the lease and the surrender of the chattel, to purchase the chattel upon payment of the amount deposited as partial security, neither taken singly nor together converted the transaction into a sale. See Painter v. Snyder, 22 Pa.Super. 603; Euwer v. Greer, 29 Pa.Super. 262; Miller v. Douglas, 32 Pa.Super. 158, and the cases therein cited. Nor did the superadded agreement, that should the chattel get out of order from ordinary use at any time within two years from date of shipment, the bailor would repair the same gratis, have that effect. For as the bailees were given the option to purchase at the expiration of the lease, it was entirely consistent with the intention to create a bailment for the parties to make an agreement as to repairs, which would be effective not only during the term but also in the event of the bailees becoming the purchasers after the expiration of the lease and the termination of the bailment. " Possession under a mere bailment for hire is not a constructive fraud, otherwise much of the business of men would be ended, and the poorer the bailee the less would be his ability to hire the use of property needful to him:" Crist v. Kleber, 79 Pa. 290; American Car, etc., Co. v. Altoona, etc., R. R. Co., 218 Pa. 519, 67 A. 838. " The fact that the original intention of the parties is to make a sale, and that such is the legal effect of their first agreement, does not prevent a change while it is still executory into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions:" Goss Printing Press Co. v. Jordan, 171 Pa. 474, 32 A. 1031; Stiles v. Seaton, 200 Pa. 114, 49 A. 774. In the present case there was no extraneous evidence of anything said or done at or prior to the delivery of the chattel to the bailees, which, under any decision that has come to our notice, would sustain a finding by the jury that a present sale was consummated or intended, and that the written contract was a subterfuge resorted to in order merely to preserve a lien on the chattel until the price should be paid. Nor is there any adequate evidence that what was at first a bailment had, in the intention of the parties, become converted by subsequent dealings into a sale. We come then to the question of laches and estoppel. The lease was made near the end of August, 1907. On September 23 of the same year the bailees left the chattel with one Paul Liberakis to be delivered to the bailor, Liberakis consenting to deliver it upon the bailor's demand and assenting to the bailees notifying the bailor to that effect. Two days later, the bailor, complying with the directions of the bailees, forwarded from Pittsburg to Liberakis at Kittanning an empty box in which to ship the chattel to Pittsburg, and mailed to Liberakis the following letter, written by one of its officials or clerks: " Vergos & Kyramis, who were in business in your town, and to whom we sold one of our cash registers, stated that they left it with you, and that if we would send you an empty box you would ship it to our Pittsburg office. We are shipping a box by express, prepaid, to-day, and would kindly ask you that you put it into this box and ship it to our address at once. Thanking you in advance for your attention, we remain, yours truly." Liberakis did not comply with this request and his implied undertaking to deliver the chattel to the bailor, nor did he reply to the letter, but instead, obtained a judgment before a justice of the peace against the bailees, and by...