Smith v. Crisman

• Decision Date: 03 November 1879
• Citation: 91 Pa. 428
• Parties: Smith <I>versus</I> Crisman.
• Court: Pennsylvania Supreme Court

91 Pa. 428

Smith versus Crisman.

Supreme Court of Pennsylvania.

October 23, 1879.

November 3, 1879.

October 23d 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1879, No. 272.

Hastings & Brewer, A. J. Monks and White & Scott, for plaintiff in error.—The subject of a sale is not always capable of an actual delivery and then a constructive delivery will be sufficient, and in such cases it is only necessary that the vendee should assume control of the subject so as to reasonably indicate the change of ownership: McKibbin v. Martin, 14 P. F. Smith 352. Whether on a sale of personal property there is such a delivery and change of possession as the nature of the property is capable of, is properly left to the jury as a question of fact: Chase v. Ralston, 6 Casey 539; Forsyth v. Matthews, 2 Harris 100; Loucheim Bros. v. Henszey, 27 P. F. Smith 308; Ehrisman v. Roberts, 18 Id. 308.

A. L. Gordon, for defendant in error.—There never was a sale or delivery of possession.

Chief Justice SHARSWOOD delivered the opinion of the court, November 3d 1879.

Upon a careful examination of the confused mass of testimony in this case, we are of opinion that the learned judge committed an error in taking it from the jury. There were questions of fact which it was their province to decide.

They might reasonably have inferred from the testimony that O. L. Wolf had been sold out by the sheriff, both his real and personal estate, that George Smith became the purchaser, either directly from the sheriff or from the sheriff's vendee. That Wolf remained in possession, either as tenant at will or simply by the permission of Smith, of the farm and of the few articles of personal property upon it, to take care of it and work it under his control. The bona fides of the transaction was questioned, but that certainly was for the jury. Nothing is better settled in this state than that the purchaser of personal property at sheriff's or constable's sale, may leave it in the possession of the defendant, as whose property it was sold, under any lawful contract of bailment: Myers v. Harvey, 2 P. & W. 478; Walter v. Gernant, 1 Harris 515; Craig's Appeal, 27 P. F. Smith 448. As to the cow, hogs, sleds and saddle, the case should have gone to the jury. There was some evidence that there had been a sale or gift of these articles by Smith to Wolf, but that was evidently a question for them.

As to the raft it was earnestly contended that there was no evidence of a sale by Wolf to Smith, or of any title in him. The facts as to the raft appear to be these: It had been got out by Wolf, under some arrangement with one Martin, to whom he was indebted, who was to take it, and, if he could, make his money out of it. Martin, however,...