Bartlick v. Josenhans

Opinion by Porter, J., This is an appeal by the defendant from the judgment of the. court below in an interpleader proceeding. Had the title of the plaintiff been entirely dependent upon the bill of sale to him executed byJfiailey, on February 24, 1904, it must under the evidence- “which was produced, as to the subsequent possession, have been held invalid, as against the creditors of the latterr The property consisted of a part of the furniture in a hotel and was capable of an actual delivery. And there being no evidence of a delivery of possession, actual, symbolic or constructive, under the provisions of said bill of sale, an execution creditor would have been entitled to binding instructions: Kendig v. Binkley, 10 Pa. Superior Ct. 463; Stephens v. Gifford, 137 Pa. 219; Barlow v. Fox, 203 Pa. 114; White v. Gunn, 205 Pa. 229. The plaintiff had, however, acquired the title which had passed to H. A. Smith under a bill of sale to him executed by Bailey in August, 1903, which was executed under peculiar circumstances. Josenhans, the appellant, was the owner of the property in question, and the lessee and licensee of the hotel in which it was used, the personal property in question being a part of the furniture used in operating the hotel. He entered into an article of agreement, on August 19, 1903, with Bailey for the sale of the leasehold of the hotel, “ together with his legal license to sell liquors,” and part of the furnishing and furniture thereof, for the consideration of $5,000, and at the same time executed a bill of sale of the personal property in question, being the furniture referred to in the agreement, to Bailey; $3,500 of the purchase money was to be paid in cash, and the balance to be secured by two notes of $750 each, one payable in three months and the other in six months. Bailey could raise only $2,500 in cash, which amount he paid to the appellant, who thereupon delivered to him possession of the property, and the license to sell liquors was transferred. Josenhans remained at the hotel where the property was, waiting for the payment of the remaining $1,000, both parties making efforts to find some person willing to advance the money. There [230] was sufficient evidence produced at the trial to warrant a finding that Harry A. Smith agreed to buy the personal property in question and pay $1,000 for it, that both Josenhans and Bailey agreed to the same, that a bill of sale of the property to Smith was executed by Bailey and approved by Josenhans, who was then still living at the hotel where the property was. There was evidence from which it was proper to permit a jury to infer that the appellant, as well as Bailey and Smith, all understood tliat Smith intended to leave the property in the hotel, that it might be used by Bailey for the purpose of carrying on the very business which Josenhans had sold, and that when the property was so left in the hotel it was done in accordance with an arrangement which the appellant fully understood at the time he in writing approved the bill of sale. There was evidence that the appellant understood and declared that this property was no longer liable for his debt, and that he looked for the payment of the two notes which he held to the proceeds of the business which the use of this property enabled Bailey to carry on. The evidence overwhelmingly established that Josenhans was present when the bill of sale was executed, that he approved it-in writing, and that he received the entire sum of $1,000 which Smith paid to Bailey, as the consideration for the sale. This completed the payment to him of the $8,500 which he was entitled to receive in cash upon the sale of the hotel with its furnishings, and he thereupon withdrew from the premises. This transaction which was intended by the parties to vest in Smith the title to the furniture, was in effect an incident of the sale of the entire property, hotel, license, good will and furniture by Josenhans, and was resorted to for the purpose of securing to him his cash payment. If the testimony was true, then this appellant was a party to the transaction which was intended to work a separation of the title and possession of the personal property in question, and he could not subsequently be heard to assert that he was intended to be defrauded by it: Zuver v. Clark, 104 Pa. 222. The case was for the jury, and there was no error in the entry of judgment upon the verdict by the court, under the question reserved. The judgment is affirmed and the appeal dismissed at costs • of the appellant. \