Wheeler & Wilson Manufacturing Co. v. Heil , 115 Pa. 487 ( 1887 )

Mr. Justice Clark

delivered the opinion of the court March 7th, 1887.

That the contract of 24th May, 1884, between the Wheeler & Wilson Manufacturing Company and Maria Heil, wife of Walter Heil, is, in terms, a bailment and not a sale of the sewing machine, we think cannot be doubted.

By the terms of the contract the company “rented” the sewing machine to Mrs. Heil for a definite period at a certain rent; she agreed to become the agent of the company in holding and keeping the possession of it, and not to remove it from the place where she then resided without the company’s consent; and, at the expiration of the term, or upon failure to pay the rent, on demand, to deliver up the possession to the company. On payment of the rent for the entire term specified in the contract, however, she had an option to buy, at a nominal price, but there was no present sale with a reservation of the title to secure payment.

Moreover, by the express provisions of tho contract, it was “ distinctly understood and agreed between tho parties,” that the contract was “ a contract of renting only, and not a sale, conditional or otherwise,” and that “no payment of money pursuant thereto, excepting the payment of the purchase money as provided, shall in any wise vest, or be understood or construed to vest, in the second party any title legal or equitable,” or “ shall prevent or hinder the party of tho first part from reclaiming possession of said machine,” etc.

Under the very recent rulings of this court in Edwards’ Appeal, 105 Penn., 103, Dando v. Foulds, Id., 74, and Forrest v. Nelson, 108 Penn., 481, it must be conceded, that the contract was to all intents and purposes a bailment. Whether a given transaction is a bailment or a sale, is in some cases obscure, but we think there can be no doubt as to the effect of the contract in this case.

Besides, this is a contention arising between the parties to the contract; the nature and effect of the transaction is not questioned by creditors or third parties, and if the parties were sui juris, they would of course be bound by the exact terms of their agreement, whether a technical bailment existed or not.

It may be doubted, perhaps, whether a contract of this character was authorized to be made by a married woman, under the Act of 29th February, 1872. Whether it was or not however is, we think, wholly immaterial in this case. One thing is certain, that Mrs. Heil did not own the machine; she either held it upon the terms of the contract under which it came into her custody, or she did not, and in either event, the title to the sewing machine was in the Wheeler & Wilson Manufacturing Company, and, upon failure on her part to comply with the conditions of the contract, the company had a clear right to reclaim their property.

Assuming that the company was bound by the contract and that Mrs. Pleil was not, there could, of course, be no personal obligation on her part to pay the rent, but the right of property remained in the company, subject to the conditions of the contract.

The rent for the machine was not paid, as provided, and the company demanded the possession of Mrs. Heil, in whose custody the company had placed it; she refused to surrender it not only in the presence of her husband, but in his absence ; there is therefore neither proof nor presumption of coercion on his part. The company, upon demand made, were entitled to the possession, and her refusal was a tortious conversion of the property.

When a tort is committed by a wife, she is personally liable, unless her husband is both present and directs the doing of it, at the time: Franklin’s Appeal, 18 W. N. C., 245. Ilis presence furnishes evidence and raises a presumption of his direction, but it is not conclusive, and the truth may be established by competent evidence: Cassin v. Delany, 38 N. Y., 178. “ The true view is, when the husband is present, during the commission of a tort by the wife, whether himself actively participating in it or nob, prima facie, the wrong shall be deemed his alone; but both in civil and criminal causes this prima facie case may be rebutted, and each of the two may be deemed in law the doer of the wrong, the same as though they were unmarried:” Cordon Rights of Married Women, 1154. They may both, therefore, be guilty of the conversion of a chattel. “ Except where otherwise provided by Statute, the husband is liable for the torts of the wife, during coveture; if committed in her company, and by his order, he alone is liable; if not, they are jointly liable, and the wife must be joined in the suit with her husband. And when, the remedy for the tort is only damages by suit, the husband is liable with the wife: (2 Kent’s Com., 149;) Franklin’s App., supra.

The judgment is therefore reversed, and a venire facias de novo awarded.