Sterling Tire Corporation v. Beers

Wolfe, J. The motion to correct the finding is without merit. The complaint in this action against the defendant William H. Beers, Jr., is solely one for goods sold and delivered to him, and against the administrator of the estate of Phebe M. Beers, upon the guaranty above referred to, based upon plaintiff’s claim of sale and delivery of goods to William H. Beers, Jr. As the ques *48 tion of the liability of the defendant William H. Beers, Jr., growing out of his agreement with Schnell to assume and to pay to the plaintiff the debt in question, is not raised by the allegations of the complaint, and therefore was not before the trial court for determination, the effect of the rule recently laid down by us in Baurer v. Devenis, 99 Com. 203, 121 Atl. 566, as applied to the facts in this case, is not before us. As the complaint thus seeks to recover from both of the defendants solely upon the ground of goods claimed to have been sold and delivered to the defendant William H. Beers, Jr., it follows that if no goods were in fact sold and delivered to such defendant, the plaintiff has no cause of action against either of the defendants. The record discloses that Schnell, as the owner of "Schnell’s Garage,” had title to the goods in question on August 2d, when he sold and transferred title therein to the defendant Beers, so that on August 27th, when plaintiff’s agent "rebilled” such goods to Beers, which consisted merely in his checking up the tires in the possession of Beers, and writing the words "Mr. Beers” upon the ledger page of Schnell’s Garage account, plaintiff had no ownership in or title to such tires, but such ownership and title were in Beers himself, and therefore there was no sale or delivery of such goods to such defendant. “A sale implies ownership in the thing sold and a transfer of that ownership to another. ... It involves the passing of title.” State v. Mad River Co., 92 Com. 35, 38, 101 Atl. 496. As the so-called "rebilling” of such tires then in the ownership and possession of Beers did not constitute a sale or delivery of such goods to Beers, and as the trial court has specifically found that the defendant William H. Beers, Jr., "at no time purchased any tires or other *49 merchandise from the plaintiff,” it follows that neither such defendant nor the estate of Phebe M. Beers is liable to the plaintiff, under the allegations of the complaint in the action. There is no error. In this opinion the other judges concurred.