Harper v. Hogue

OPEsnoH by Beeber, J., We think the learned court below arrived at the proper conclusion in holding the agreement in this case to be a conditional sale. It provides that Harper will sell and transfer to Tryon the portable steam sawmill for a certain sum which is to be paid for at a certain rate and at certain times. All the terms that usually are found in agreements of sale are first clearly defined before the agreement provides that the property shall become the property of Tryon, when full payment is made, “ until which time it shall remain the property of ” Harper, and “ the payments made as above provided shall be made as rental for said mill.” This case does not belong to that class where the terms of a lease are clearly set forth to which is added an agreement to sell at the termination of the lease. There is no other language in the agreement, except this in reference to payments being considered as rental, that shows it was to be a lease or bailment. It seems clear to us that this reservation of title in Harper and the provision that payments shall be made as rental indicate that the first intent was a sale with an attempt to reserve the title as security for the purchase money. When a man leases his property he does not think it necessary to insert a clause that the property leased shall remain the lessor’s until it is fully paid. The insertion of such a clause rather indicates an intention to preserve a lien for the price. This was clearly shown in Ott v. Sweatman, 166 Pa. 217. It is argued that because the agreement provides that Harper “will sell and transfer to the party of the second part on the fulfilment of the covenants and conditions hereinafter contained,” it shows an intent that there is to be a sale only after the full [634] payment of the purchase money, and thus the case is within that class of which Clark v. Jack, 7 Watts, 375, is a type. Some strength might be conceded to this argument if it appeared that possession of the mill was taken in pursuance of some terms in the agreement showing a lease or bailment. But this does not appear. The agreement provides for nothing but a sale — reserving the title and calling payments rental, it is true — but still speaking only of a sale. The use of the word “ will ” applies as well to the word “ transfer ” as it does to the word “ sell ” and the seller himself has put a construction upon this by delivering the mill at the time of the execution of the article of agreement. By the use of this word under such circumstances he does not seem to have meant so much to emphasize the time when he would sell in the future but rather to express a present intent, which was to sell. The words in reference to fulfilling certain covenants and conditions still have something to operate upon by holding them to apply to the payments in the manner and at the times provided for in the agreement. They seem to us rather to strengthen the inference that a conditional sale was intended with a reservation of title as security, as they are used in immediate connection with words that can mean nothing but a sale. The opinion of the learned court below shows how the cases of Rowe v. Sharp, 51 Pa. 26, and Enlow v. Kline, 79 Pa. 488, upon which appellant mainly relies, have been criticised and explained. They have gone to the extreme limit and cannot be regarded as authority except for cases with facts identical. Judgment affirmed.