Hunter v. Voigt

Opinion by Rice, P. J., This was an action of replevin for a piano let 'by George E. Dearborn to the defendant under a contract of bailment which provided that upon default in the payment of instalments the lessor might retake possession. The defendant gave bond and retained the piano and pleaded “non cepit” and “property.” The only evidence of title offered by the plaintiff was an assignment to him of all Dearborn’s right, title and interest in the lease. Upon cross-examination the plaintiff admitted that the assignment was without consideration, that it was made in order that suit might be brought in Ms name and Dearborn act as his surety, and that he had reassigned the piano to the latter’s estate. Upon this showing the court correctly directed a verdict for the defendant. The pleas imposed on the plaintiff the necessity of proving property, either absolute or qualified, in himself, and the right of immediate possession. But by his own admission he had neither. He had divested himself of whatever semblance of right the assignment of the lease gave him, and on the day of the trial was an absolute stranger to the property. The legal title, the entire beneficial ownership, and the right of possession! — assuming that the defendant was in default — were in Dearborn or his assignees for the benefit of creditors. Hunter was in no sense a trustee, and the proposed amendment designating him as such would not have been in accordance with the fact. Therefore, the court committed no error in refusing it. Nor was there reversible error in permitting the defendant to draw out from the plaintiff under cross-examination the facts as to his title. As we have suggested, these facts were pertinent to the issue, and although the cross-examination did not pertain strictly to what the plaintiff had testified in chief, still he might have been called by his adversary and compelled to disclose them. While the general rule is, that cross-examination should be confined to the matters stated in the examination in eMef, yet the authorities show, that in order to reverse for a seeming depar [487] ture from this rule it must be an extreme case, in which discretion has been abused and in which it is apparent that the party has been injured: Jackson v. Litch, 62 Pa. 451; Bohan v. Avoca Borough, 154 Pa. 404; Osborne v. Walley, 8 Pa. Superior Ct. 193. This is certainly not such a case. All the assignments of errors are overruled and the judgment is affirmed.