Woolsey v. Axton & Son

• Decision Date: 19 July 1899
• Docket Number: 128
• Citation: 43 A. 1029,192 Pa. 526
• Parties: Orville I. Woolsey, Appellant, v. Axton & Son
• Court: Pennsylvania Supreme Court

43 A. 1029

192 Pa. 526

Orville I. Woolsey, Appellant, v. Axton & Son

No. 128

Supreme Court of Pennsylvania

July 19, 1899

Argued May 9, 1899

Appeal, No. 128, Jan. T., 1899, by plaintiff, from judgment of C.P. Fayette Co., Dec. T., 1898, No. 54, on verdict for defendant. Affirmed.

Assumpsit to recover the purchase price of a raft. Before MESTREZAT P.J.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

[We are of opinion that, under the contract submitted here and under which the plaintiff, Woolsey, claims to recover and claims title to this raft, it was his duty to pay, or to secure the payment of, the balance of the purchase money according to the contract, before he could legally recover or compel Minor to deliver him the raft. It is not disputed, as we have already said, that he didn't pay the balance of the one half on the first of April, 1897, of the purchase money due on this raft or give a note for the remainder for ninety days as required by this contract. It is our opinion that, not having done that, he is not in a position, and was not in a position, to require the delivery of that raft to him. As we understand the evidence -- and it is not disputed -- there was no delivery of this raft to Woolsey. It is claimed however, on the part of Mr. Woolsey that under this agreement when these sticks of timber were taken by Minor to the Monongahela river and placed in the river and put together or rafted, as it is called here, that it immediately became the property of Woolsey and was a delivery under this contract. That is not our construction of this contract; on the contrary, we are of opinion that, in addition to placing the sticks of timber in the river and rafting them, putting them together, that there was yet to be a delivery by Minor to Woolsey. It is not denied that Minor placed his ropes upon this raft and moored it there at the mouth of Georges creek; and it is not denied, further, that Woolsey didn't take possession of this raft until that Sunday when he did it in the absence of Minor and without his permission. That was not a delivery by Minor to Woolsey.]

The court refused plaintiff's second point recited in the opinion of the Supreme Court [2], refused binding instructions for plaintiff [1] and gave binding instructions for the defendant. [4]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-4) above instructions, quoting them.

We are of opinion that the court below committed no error in holding there was no delivery of the raft to Woolsey under the contract. The assignments of error are overruled, and the judgment is affirmed.

Edward Campbell, for appellant. -- The title to the raft was in the plaintiff: 1 Parsons on Contracts (7th ed.), p. 562; Dennis v. Alexander, 3 Pa. 50; Ropes v. Lane, 11 Allen, 591; Shaw v. Nudd, 8 Pick. 9; Higgins v. Chessman, 9 Pick. 7; Ballentine v. Robinson, 46 Pa. 177; Com. v. Fleming, 130 Pa. 138.

George D. Howell, for appellees. -- Where goods are manufactured under a contract, even though the title passes to the vendee upon completion, the lien of the vendor for the purchase money remains until he parts with the possession, or does some act inconsistent with the purpose to retain a lien: Nat. State Bank v. Korting Gas Eng. Co., 3 Pa. Dist. Rep. 604; Lester v. McDowell, 18 Pa. 91.

We contend that Minor never by word or deed, showed an intent to part with possession of the raft until paid: Bush v. Bender, 113 Pa. 94; McCullough v. McCullough, 14 Pa. 295.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE DEAN:

On February 20, 1897, Woolsey, this appellant, made an agreement in writing with Josephus Minor, as follows:

"1897-2-20, NEW GENEVA,

"FAYETTE CO., PA.

"I, Jos. Minor of the first part agree to deliver at New Geneva, Pa.

"One raft averaging 120 cu. ft. to stick if weather is reasonable.

"One raft averaging 100 cu. ft. to stick and the tie poles for the first raft.

"I, Orville Woolsey of the second part agree to pay him one hundred dollars now on first raft; balance of half the amount on April 1st, 1897; and note for balance, for ninety days.

"Second raft: half down, and ninety day note; timber to be in against May 10th, 1897.

"Witness: ORVILLE WOOLSEY.

"Witness: JOE MINOR.

"TODD DREW.

"Endorsed: First raft settled for 6420 cu. ft. at 10 cts. $642. Settled April 10, 97."

It will be noticed, two rafts were contracted for to be delivered at Geneva. The second one mentioned was delivered and paid for there is no dispute as to that one. The first one which was to average 120 cubic feet per stick is the one in dispute. The price per foot is not specified in the written agreement, but that it was ten cents per cubic foot is not disputed. One hundred dollars of the purchase money for this one, it will be noticed, was to be paid on signing the agreement; half the balance on April 1, 1897, and note for remaining half at ninety days to be then given. The $100 was paid on signing agreement, and afterwards an additional $50.00. About August 10, 1897, the raft was moored at Geneva by Minor, and Woolsey notified, who examined it, and finding fault with several of the sticks, Minor replaced them by others, and Woolsey announced himself satisfied; then, notified Minor to come to his house and they would make a settlement on the contract. They accordingly met at Woolsey's house for that purpose. Woolsey claimed there was due him from Minor an old debt of $500, which should be credited on the purchase money. Minor denied the justice of this claim alleging he had...