White v. Gunn
| Decision Date | 23 March 1903 |
| Docket Number | 164 |
| Citation | 54 A. 901,205 Pa. 229 |
| Parties | White v. Gunn, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 16, 1903
Appeal, No. 164, Jan. T., 1902, by defendant, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1898, on verdict for plaintiff in case of Lemuel A. White v. John Gunn. Affirmed.
Issue to determine the ownership of personal property seized and taken in execution.
The facts are stated in the opinion of the Supreme Court.
The court refused binding instructions for defendant.
Verdict and judgment for plaintiff. Defendant appealed.
Error assigned was in refusing binding instructions for defendant.
M Hampton Todd, with him Bamberger & Levi, for appellant. -- This case, under the undisputed evidence, should have been determined by the court in the first instance: Keystone Watch Case Co. v. Fourth Street Nat. Bank, 194 Pa. 535; Stephens v. Gifford, 137 Pa. 219; Barlow v. Fox, 203 Pa. 114.
Emanuel Furth, with him Max Herzberg and Jacob Singer, for appellee. -- The case was for the jury: Keystone Watch Case Co. v Fourth St. Nat. Bank, 194 Pa. 535; Garretson v. Hackenberg, 144 Pa. 107; Goddard v. Weil & Co., 165 Pa. 419; McCullough v. Willey, 192 Pa. 176; Bell v. McCloskey, 155 Pa. 319; Janney v. Howard, 150 Pa. 339; Renninger v. Spatz, 128 Pa. 524.
Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
The complaint of John Gunn, the appellant, is that the jury were allowed to determine the character of the sale of the brickyard plant by his father, Charles B. Gunn, to Lemuel A. White, the appellee. He insists it was a fraud in fact as well as in law, and that the court should have sustained each of these positions and directed a finding in his favor. The learned trial judge was clearly of the opinion that the sale was in fact fraudulent, and, incautiously, perhaps, though of this the appellant cannot complain, told the jury that he was not without a very strong impression on that question, and that, if he were in the box, he would have little hesitation in drawing the conclusion from the evidence submitted that there had been a collusive sale by Charles B. Gunn to Lemuel A. White, for the purpose of avoiding and anticipating an adverse decree against him by putting his property out of the reach of his creditors. But, notwithstanding his own impression, he declined to withdraw the question from the jury, saying: Though the jury might very fairly have determined that the sale was a fraud in fact, there was at the same time sufficient evidence to justify their finding that it was not, and it would have been error for the court to have withdrawn the question from them. The good faith of the transaction was purely for them.
The appellee testified that, on February 26, 1900, a year before the appellant obtained a decree against Charles B. Gunn, he had purchased the personal property which was the subject of the feigned issue; that a day or two before he purchased it Charles B. Gunn came to his office and told him he was "hard up" and would like to have some money. A receipt of Charles B. Gunn to the appellee was produced, acknowledging the latter's check for $100 and his note for $2,400, payable four months after date, in payment of the purchase money for the property purchased, which the appellee says he paid. Evidence was submitted that the price paid for the property was a fair one. In the face of this the good faith of the transaction between the vendor and vendee was for the jury alone, no matter how persuasively the learned counsel for the appellant contend that other features of the case, to which we need not call attention, made it the duty of the court to declare the transfer a fraud in fact.
The jury having found that the sale was in fact honest, was it constructively fraudulent? When we said in Keystone Watch Case Co. v. Fourth Street National Bank, 194 Pa. 535, that the rigor of the rule as laid down in Clow v. Woods, 5 S. & R. 275, which requires the purchaser of personal property to take and retain possession of it, had been greatly relaxed, we did not say nor intend to say, that the rule itself is not still the law. It is as true now as it was when the rule was announced in that case, nearly a century ago, that, if a purchaser pays the price for goods purchased by him, without taking possession of them, he takes the risk of the integrity and solvency of his vendor when the rights of a subsequent bona fide purchaser or an execution creditor arise: Stephens v. Gifford, 137 Pa. 219. Less than a year ago we said, "There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title by the act of the owner that shall be valid against creditors:" Barlow v. Fox, 203 Pa. 114. What, however, would be a sufficient delivery of possession and retention of it in one case might not be in another; and in saying that the rigor of the rule requiring the purchaser to...
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