The Baltimore and Ohio Railroad Co. v. Hoge

• Decision Date: 01 January 1859
• Citation: 34 Pa. 214
• Parties: The Baltimore and Ohio Railroad Co. versus Hoge.
• Court: Pennsylvania Supreme Court

Page 214

34 Pa. 214

The Baltimore and Ohio Railroad Co.versusHoge.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Greene county.

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Black and Phelan, for the plaintiffs in error.

Lindsey, Downey, and Sayers, for the defendant in error.

The opinion of the court was delivered by THOMPSON, J.

The retained possession of the property by the vendors, Pettibone, Hoban & Co., made a primâ facie case of fraud between them and the vendees, so far as creditors were concerned.This is the rule by the laws of Virginia; and that being the locus contractus, and also that being the situs of the property in question, we are to be governed by it: Born et al. v. Shaw, 5 Casey 288.These facts having been shown, it became necessary for the defendants to rebut the presumption of fraud arising out of the circumstance of retained possession.This they endeavoured to do by putting in evidence a written contract of the sale, accompanied by the testimony of witnesses as to the time, mode, and manner of making it, the taking a schedule, and the fixing an approximate estimate of the value of it.This was for the purpose of divesting the transaction of the taint arising from the retained possession by the vendors.In this connection, and for the same purpose, they also gave in evidence a receipt for the payment of $8000 to the vendors, alleging that it was a payment of the property, in which it is stated to be "for the stock of horses and other property on section No. 163 of the road of said company, under the contract of September 2, 1852, and also on account of any balance that may be due to me under my contract for the construction of said section."

After the defendants closed their case, the plaintiff rebutted, and gave evidence tending to show a larger indebtedness on part of the railroad company to Pettibone, Hoban & Co. for work done, than the sum paid them, for which the receipt was given, and also that the approximate estimate of the property, $8000, was from $1000 to $4000 below its actual value; that the possession remained unchanged up to and even after the payment of the money, and until the attachment was served; and proved by one or two witnesses, in contradiction of the terms of the contract, that the possession of the horses, the property attached, was not to be delivered to the defendants until their value was ascertained in the manner provided for in the agreement, and that it had never been so ascertained.In conclusion, the plaintiff claimed, that the form of the receipt was evidence, on the question of fraud, for him; that it served to show that, although by the terms of the contract, it was agreed that the horses were delivered, yet that, as between the parties, this was not the true state of the case, but that the sale was only conditional, as testified to by witnesses and corroborated by the other facts in the case, and especially the retention of the possession by the vendors, and their contracting for their pasturage after the payment of the money.From this evidence and these circumstances, together with the terms of the receipt, they claimed that the money was paid in whole or in part on the indebtedness for the work done, and that if there was fraud in this assumption of payment on the price of the horses, it might be considered by the jury, as a circumstance, evincive of fraud in the origin of the alleged sale.We think it was a circumstance to be considered by the jury.The sale was a secret in the neighbourhood of the work, and everywhere else, for what we know.It was dated on the 2d of September 1852.The property was used and cared for in the same way, by the same owners, up to the 10th of September, although it was alleged to have been sold and paid for; and on that day, it was removed from the work by the same parties, under a contract for pasturage to be paid for by them for an indefinite period.Farmers and millers furnished provisions to their men as contractors, and feed for their cattle, without any...