Trunick v. Smith
| Decision Date | 03 January 1870 |
| Citation | 63 Pa. 18 |
| Parties | Trunick <I>versus</I> Smith. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Indiana county: No. 153 to October and November Term 1868.
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
H. W. Weir (with whom was W. Banks), for plaintiff in error.— Wilson was the bailee of Trunick of the truck: 2 Kent's Com. 723; the possession was therefore in Trunick as much as the nature of the chattel was susceptible of. He cited also Tompkins v. Saltmarsh, 14 S. & R. 275; Commonwealth v. Chathams, 14 Wright 181; Linton v. Butz, 7 Barr 89; Young v. McClure, 2 W. & S. 150; McBride v. McClelland, 6 Id. 94. The truck was in its nature cumbersome and all the change possession required by the law was made. Dunlap v. Bournonville, 2 Casey 72; Chase v. Ralston, 6 Id. 541; Steelwagon v. Jefferies, 8 Wright 407; Benford v. Schell, 5 P. F. Smith 393.
H. White and H. D. Forster, for defendant in error cited Milne v. Henry, 4 Wright 358; Dornick v. Reichenbach, 10 S. & R. 84; Carpenter v. Mayer, 5 Watts, 483.
The opinion of the court was delivered, January 3d 1870, by AGNEW, J.
This is a close case, and its solution depends upon the nature of the property, and the character of the possession at the time of the sale by the sheriff. The leading points are, that McCormick, in a division of property between him and his partner, became the owner of a railroad truck, which they had been running on the Pennsylvania Railroad. McCormick took it to Homer Station, and left it, in October 1857, in the care of Mr. Wilson, an agent of the railroad company. It was placed on the siding, and remained there for several months. In January 1858, McCormick sold it to Trunick, the plaintiff, in exchange for certain personal property. On or about the first day of April, Trunick's son communicated the fact of sale to Wilson, the agent. On the 5th of April 1858, McCormick wrote from Pittsburg, to Wilson, informing him of the sale to Trunick, and on the same day Trunick wrote from Temperanceville, to Wilson, stating his purchase of the truck, and constituting him his agent, to hold the possession. During all this time the truck remained on the siding, where it had been left in October, and was still there when Smith, as sheriff, made his levy on the truck, at the suit of McCormick's creditor. The court below charged that Wilson was a mere agent, not a bailee, and that, under the circumstances, the sale by McCormick to Trunick was a legal fraud.
Under the charter of the Pennsylvania Railroad Company, Pamph. L. 1846, p. 323, the railroad is made a public highway, which may be used by persons owning their own cars, the company furnishing the motive power. It is stated by the plaintiff in error, that the motive power had been furnished to McCormick and his partner, by special contract with the railroad company. Now, it is very clear, that the railroad, being a public highway, every owner of cars is necessarily in the possession of his own car, no matter on what part of the track it may happen to be. It cannot be deemed to be in possession of the railroad company, which only furnishes the motive power to haul the car over the track. Nor can the right of the truck or car to remain on the railroad be denied, subject to the regulations of the company as to the place it shall occupy when not in use. It was, therefore, the undoubted right of McCormick to leave the truck on the siding at Homer, in charge of the agent of the company, if not objected to by the company. The possession was clearly in McCormick, as the owner of the truck, when he ran it upon the siding at Homer, and it continued in him, unless it was changed by some notorious act, placing it under the control of some one else. The creditors of McCormick, finding that he had left it on the siding, in October 1857, had a right to believe the possession was still in him. Such was the nature of the property, and the right of its owner to the use of the railroad track, no other inference could be legally drawn; unless by removal and passing into the control of another, by some notorious act, the creditors were put on their...
To continue reading
Request your trial
-
Bowersox v. Weigle & Myers
... ... Pa.Super. 433; Hill v. Leibig Mfg. Co., 3 Pa.Super ... 398; McMarlan v. English, 74 Pa. 296; Miller v ... Garman, 69 Pa. 134; Trunick v. Smith, 63 Pa ... 18; Hoofsmith v. Cope, 6 Wharton 53 ... Delivery ... to be good against creditors must be so open and so long ... ...
-
Leitch v. Sanford Motor Truck Co.
... ... deprived of his property. But possession is one of the ... incidents of a good bailment: Trunick v. Smith, 63 ... Pa. 18, 23; McBride v. McNally, 243 Pa. 206, 209 ... Such possession is not inconsistent with the owner's ... title, and such "a ... ...
-
Knapp v. Knapp
... ... in whom the real ownership and title rested. Meier v ... Meier, 105 Mo. 411; Anderson v. McPike, 86 Mo ... 293; Cavin v. Smith, 24 Mo. 221. It, therefore, ... follows that the admission of the appellant, made on the 9th ... day of February, 1903, to the effect that the ... [Coleman v. Lipscomb, 18 ... Mo.App. 443; Potter v. Mt. Vernon Roller Mill Co., ... 101 Mo.App. 581, 73 S.W. 1005; Trunick v. Smith, 63 ... Pa. 18.] Bailment in most instances is founded on contract, ... but not in every instance. As said in Hale on Bailments, p ... ...
-
Schmidt v. Bader
... ... exceptions ... The ... judgment is reversed, and is here entered for the plaintiff ... Calvin ... F. Smith, of Smith & Paff, for appellant. -- The bailment ... contract of July 30, 1919, was the written agreement which ... was accepted by the original ... Unger, with them Wm. W. Ryon for appellee ... -- In a bailment it must appear that there was an intention ... to transfer the possession: Trunick v. Smith, 63 Pa ... But in ... the case at Bar, Schmidt had no possession to deliver: ... McFarland-Mead Co. v. Doak, 63 Pa.Super. 27 ... ...