Rogers v. Schadt , 218 Pa. 617 ( 1907 )

Opinion by

Mr. Justice Brown,

The verdict in this case was fully justified by the evidence. Under the instructions given them as to what was essential to the plaintiff’s right to recover, the jury found that the plaintiff had acquired title to the goods seized under the attachment by a bill of sale, dated June 27, 1903; that he had acquired it in good faith, for a valuable and fairly adequate consideration, and without collusion with his brother in any intent to hinder, delay or defraud the latter’s creditors; that transfer of possession accompanied the sale, and that the sheriff acted at the suggestion and instance of Marcus, his codefendant, after both had notice of plaintiff’s claim of title.

If a trespass was committed the jury could not fairly have found that Marcus had not joined in it. D. O. Coughlin, a member of the Luzerne county bar, who represented the appellee at the time the goods were seized, testified that when he spoke to Marcus about the great damage his client would sustain in having the store closed up and offered to make a compromise, the latter replied, that unless all of the debt with costs, both his own and that of his brother-in-law held by him, were paid, he would close up the store. In addition to this, as the learned trial judge in overruling the motion for a new trial very justly says, the conduct of Marcus was such as implied his knowledge of the fact that the constable had been permitted by the sheriff to take the property in execution, for he was present at the time and place of sale and participated in it as a bidder.

Each of the twenty-one. assignments of error has been duly considered, but from no one of them does any error appear, and as to all of them, except the sixteenth, nothing more need be said than that the charge was adequate and correct; the rulings on offers of evidence and on plaintiff’s motion to strike out some which had been admitted, were proper, and the answer to each point was free from error. The case was properly tried in all respects.

The plaintiff’s title to the property seized was the fundamental question for the jury’s consideration. Though it might have been good as between him and his brother, it would not have availed as against the latter’s creditors, if the sale had not been accompanied with change of possession. The learned trial judge in his general charge instructed the jury that to make the transaction good against the creditors of O. R. Rogers there must have been not only a transfer of the title, but of possession of the goods, and that the transfer or change of possession must have been such as the nature of the property and the situation of the parties would reasonably have permitted. By the seventh point the court was asked to say to the jury that in passing upon the question as to whether there was a sale by Olin R. Rogers to W. B. Rogers, they must take into consideration all the evidence in the case, and if from it they found there was no apparent change in the ownership of the business; that so far as could be observed it was conducted after the date of the alleged sale as it had been prior thereto by Olin R. Rogers ; that the sign and business name on the property remained Olin R. Rogers, and the same clerks were employed in the business, that these were facts to warrant a finding that, even if there was a bill of sale for a valuable consideration from Olin R. Rogers to "W. B. Rogers the same was fraudulent and void in law as against the creditors of the former, and the property, regardless of the bill of sale, remained his property as against any of his creditors. This point was refused without being read and counsel for appellants insist earnestly that the refusal to affirm it was “ most palpable error.” The point as drawn could not have been affirmed without misleading the jury, for they naturally would have understood from its affirmance that if they found the specific facts set out in it, no matter what other facts might be found indicating change of ownership, they ought to find that the sale was fraudulent in law. In addition to what was said in the general charge the court, in unquálifiedly affirming the second, third and fourth points submitted by the defendants, distinctly instructed the jury that delivery of possession in personal property is indispensable to transfer a title as against creditors ; that in passing upon the question of the sufficiency of possession alleged to have been taken by W. B. Rogers they must take into consideration the nature of the acts and the usages of trade and business and, if they believed that he failed to assume such control of the property as ought reasonably to have indicated a change of ownership, the verdict would have to be for the defendants; that an ambiguous transfer of possession by O. R. Rogers to W. B. Rogers would be invalid as to the defendants and if they believed the change of possession, if any, was not apparent and visible, their verdict would be for the defendants ; and if they should find that W. B. Rogers did not do all that he might reasonably have been expected to do, even if the sale was honest, so far as indications of ownership to creditors was concerned, the verdict would have to be for the defendants. To more than this the appellants were not entitled.

The assignments are all dismissed and the judgment is affirmed on the opinion of the court overruling the motion for a new trial.

Judgment affirmed.