Summerson v. Hicks

• Decision Date: 12 May 1890
• Docket Number: 426
• Citation: 134 Pa. 566,19 A. 808
• Parties: JOHN SUMMERSON v. WILLIAM HICKS ET AL
• Court: Pennsylvania Supreme Court

19 A. 808

134 Pa. 566

JOHN SUMMERSON v. WILLIAM HICKS ET AL

No. 426

Supreme Court of Pennsylvania

May 12, 1890

Argued March 17, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF CLINTON COUNTY.

No. 426 January Term 1889, Sup. Ct.; court below, No. 133 May Term 1886, C.P.

On April 7, 1886, two horses and two sets of harness, alleged to be of the value of $300, were replevied by the sheriff and delivered to the plaintiff, at the suit of John Summerson against William Hicks and Mary Hicks. Issue.

At the trial on March 4, 1889, it was shown that on October 31 1885, the plaintiff, through one Garsty, made a bargain with William Hicks, husband of Mary Hicks, for two horses and harness, for the price of $225; $100 was to be paid in cash and Mrs. Hicks "was to have a lease for $125 payable on the 1st of April for the balance." Garsty paid the $100 cash, and the team was delivered to the plaintiff; then a paper was executed which was as follows:

"This is to certify that I have this day leased to John Summerson 1 pair of dark bay horses for the sum of one hundred and twenty-five dollars, to be paid by the first of April, 1886 and, in case the said John Summerson shall fail to make said payment as above agreed to me (Mary Hicks), then I shall have full and free possession of said horse team; and it is further agreed that the ownership shall remain in hands of Mary Hicks until payment is made in full.

"LEIDY, Pa., Oct. 31, 1885.

"Witness:

MARY HICKS. [SEAL.]

"H. FISH.

JOHN SUMMERSON. [SEAL.]"

The $125 being unpaid, Mr. Hicks, early on the morning of April 1, 1886, took the horses and harness from the plaintiff's barn, and, on the afternoon of the same day, Garsty, on behalf of the plaintiff, went to Mrs. Hicks and tendered "her the money, the $125 for the lease. She says, 'I can't give it to you until I see Bill,' that is, her husband." There was no evidence that the money was ever tendered again, nor was it brought into court.

The court, MAYER, P.J., charged the jury as follows:

[Under our view of this transaction we do not think the defendants have made out such a defence as would entitle them to recover, and we therefore instruct you to find for the plaintiff.] We can put our reasons at length upon the record.

Defendants' counsel has presented the following points upon which he requests us to instruct you:

1. That, by the terms of the written contract of October 31, 1885, in evidence, time is made the essence of the contract; and if the jury believe that the sum of $125 thereby agreed to be paid by the plaintiff to the defendants "by the first of April, 1886," was not so paid, then the horses mentioned in said agreement were the property of the said Mary Hicks, or said defendants, and the verdict should be in favor of the defendants.

Answer: This point we refuse.

2. Said written contract provided for the payment of $125 by the plaintiff to the said Mary Hicks "by the first of April, 1886;" and if the jury believe, from the evidence, such payment was not made or tendered to her before the first day of April, 1886, then the title to the horses mentioned in said agreement and in controversy in this suit was on said day in her the said Mary Hicks, and the verdict of the jury should be in favor of the defendants.

Answer: This point is also refused.

The jury returned a verdict in favor of the plaintiff. Judgment having been entered, the defendants took this appeal assigning for error:

1. The instruction to find for the plaintiff.

2. The portion of the charge embraced in []

3, 4. The answers to the defendants' points.

Judgment reversed, and venire de novo awarded. ^[*]

Mr. Seymour D. Ball, for the appellants.

That time was of the essence of the contract, counsel cited: Westerman v. Means, 12 Pa. 97; Lester v. McDowell, 18 Pa. 91; Rankin v. Woodworth, 3 P. & W. 48; Miller v. Phillips, 31 Pa. 218. That the tender made was ineffectual: Harvey v. Hackley, 6 W. 264; Pennypacker v. Umberger, 22 Pa. 492; Wheeler v. Woodward, 66 Pa. 158.

Mr. Jesse Merrill, for the appellee.

As to the meaning of the word "by," counsel cited: Anderson's Dict. of L., 142; Ferguson v. Coleman, 3 Rich. L. 99 (45 Am. Dec. 761). That the paper was in the nature of a chattel mortgage: Boyle v. Rankin, 22 Pa. 168. Upon the matter of the tender: D'Arras v. Keyser, 26 Pa. 249.

Before PAXSON, C.J., STERRETT, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE MITCHELL:

We are unable to agree entirely with the view taken by either of the parties. Both appear to have been in some degree misled by looking at the name, and not at the substance of the contract. It is called a lease, but it is manifestly a sale. No term is stipulated for the hiring, nor any rate per month or per annum. On the contrary, it is merely said that the horses are leased for a lump sum of one hundred and twenty-five dollars....