Summerson v. Hicks

Opinion, Mr. Justice Mitchell : This case is governed by the decision already made when it was here before : 134 Pa. 566. It was then held that the contract was one of sale, and that the title and the right of possession were in the vendor from April 1,1886, until payment in full of the purchase money, or, of course, its equivalent, a tender duly maintained. The action was replevin, and, as it [349] stood when it was first tried in the court below, the plaintiff was endeavoring to retain the possession without either payment or a proper tender. This court decided that under the contract and the circumstances the right of possession was still in the vendor, and directed a venire de novo. If the case had proceeded to a new trial in the ordinary course, the plaintiff, not being able to prove either payment or tender maintained so as to be effectual, must have failed in the action. As the facts were apparently undisputed, he brought the money into court upon petition and leave granted; the defendant took the money out of court upon like leave; and the case was submitted to the judge without a jury, by agreement, under the act of 1874. The plaintiff thus completed his title to the horses, the defendant received the stipulated price, and the whole controversy was at an end, except as to the question of costs. The learned judge imposed these on the defendant, because she had been in the wrong in not accepting the money when it was offered to her on the day appointed. But, while this was an error on her part, she did not thereby forfeit her xight under the contract to hold the title and possession until actual payment. The penalty for refusing the price of goods sold, when offered, is not the loss of the goods and the price, both or either, but the payment of the costs when the purchaser’s demand is properly made. If plaintiff had brought the money into court with his writ, he would have been entitled to judgment. .But, in seeking to recover possession without payment, he put himself as much in the wrong on the merits as the defendant already was, and what is more important he put himself in the wrong legally. From the time his writ issued until he brought the money into court, he never was in position to maintain his action, and was therefore always liable for the costs. Bringing the money into court after action begun was analogous to a plea of tender, and, by the settled rule, carried with it the liability for costs up to that time: Harvey v. Hackley, 6 W. 264. We see nothing in the agreement of submission to the judge without a jury to take the case out of the usual rule. The plaintiff, to maintain his tender, should also have paid costs up to that point, and then would have been entitled to judgment. Failing in this, the judgment must have been for defendant, with a retorno habendo, to be [350] satisfied on payment of the balance of the price due, and costs: Morris on Replevin, 3d ed., 215. This was the position of the present case up to the time of defendant’s taking the money out of court, and her action in so doing did not forfeit her right to the costs which were then due her. The learned judge in his opinion adverts to the fact that the question of tender was not made at the first trial in the court below, and suggests that the action of this court in reversing upon it was at variance with the rule laid down in Phila. R. Co. v. Getz, 113 Pa. 214, and other cases. It was not so intended. The question was argued here by both parties as if it were properly before us; see the reported arguments in 134 Pa. 568, 569, and was made the basis of the decision upon that view, with no intention of departing from the usual practice. Judgment reversed, and judgment for defendant for costs only.