Ewing v. Musser

Opinion by Henderson, J., The appellant contends for two propositions: (1) that there was a delivery of the cattle to the purchaser as a result of which the title passed to him free from lien for the purchase money, and (2) that the sale of the cattle .by the defendant at the stock yards in accordance with a local custom converted the property into money and that an action of trespass in the nature of trover cannot be sustained. That the negotiation between Alwine and the plaintiff contemplated a cash payment can hardly be doubted. The telegraphic order for the stock directed the plaintiff to draw on the purchaser for the [180] price. Nothing was said in the correspondence about any other terms, and former dealings between them in a few sales had been cash transactions. Where a sale of chattels is made without any expressed agreement as to the time of payment the presumption is that the parties dealt on a cash basis and no title passes to the vendee until the price has been paid, unless there has been an actual delivery without payment: Welsh v. Bell, 32 Pa. 12; Hand v. Matthews, 208 Pa. 149; Frech v. Lewis, 218 Pa. 141. And even where there has been a delivery, if such delivery is made with the belief that payment is to be made at once and the vendee fails to pay, the vendor may reclaim his property if he take immediate steps so to do: Woolsey v. Axton, 192 Pa. 526; Frech v. Lewis, 218 Pa. 141. The presumption arising from the absence of evidence of any arrangement for credit and the testimony showing that the bill of lading was attached by the plaintiff to the draft against Alwine and forwarded for collection close the door against the argument that the plaintiff’s contract of sale was not on a cash basis. The consignment was to Alwine in care of the defendant who was a live stock dealer at Lancaster. Before the cattle or the draft arrived Alwine absconded and, so far as appears in the case, never knew whether the cattle arrived or not. The defendant sold the cattle without instructions either from the plaintiff or Alwine, in accordance, as he explained, with a local usage of the yards at Lancaster that all cattle consigned to the care of dealers are sold as soon as can be advantageously done. There is no evidence, however, that the plaintiff knew of any such usage or that Alwine intended this shipment of cattle for sale at the stock yards. On the day of the sale the defendant wrote to the plaintiff: “We had a load of heifers to-day billed from J. T. Ewing, Kansas City,'to H.. W. Alwine, care F. C. Musser. We sold them for five sixty-nine per hundred and net amount realized is $1,100.11. Were they your cattle, and if so, let me know, and if you made draft, and we will mail you remittance. F. C. Musser.” To this letter the plaintiff answered by telegraph: “Cattle billed Alwine made draft Middletown.” The defendant apparently supposed that the plaintiff was the owner of [181] the cattle and he recognized the plaintiff’s title to the money arising from the sale if a draft was drawn. The plaintiff was led by this letter to believe that the defendant would remit to him the money into which he had converted the cattle, but not having received it he drew on the defendant on June 27. We do not find anything in the case to indicate that the plaintiff was remiss in asserting his title as soon as he learned that his draft was protested. His remoteness from the place to which the cattle were consigned necessarily delayed his efforts to recover his property. But we would not be justified in declaring him in default in this respect. If we assume that delivery to Musser was a delivery to Alwine and that Musser could rightfully sell the cattle without instructions or knowledge that Alwine desired.to have them sold it became his duty when informed of the situation to pay the money to the plaintiff and his refusal so to do amounted to a conversion. The custom in existence at the stock yards according to which the sale was made could have no effect in changing the title or investing the defendant with any right which Alwine would not have had if he had been present. The action of trover is based on the right of possession of the plaintiff against the defendant. The plaintiff must show property in himself and an unlawful conversion by the defendant. If, then, the plaintiff could have reclaimed his property when he discovered that his draft was protested neither Alwine nor Musser could convert the property and refuse to deliver up the price. Such refusal would relate back to the sale and would make the act a wrongful conversion of the cattle. The case of Alexander & Co. v. Goldstein, 13 Pa. Superior Ct. 523, is an authority supporting the form of action. On both of the questions submitted we think the case is with the plaintiff. The judgment is, therefore, affirmed.