Wilson v. Weaver , 66 Pa. Super. 599 ( 1917 )

Opinion by

Kephart, J.,

This is an interpleader proceeding to determine the title to horses, sleds and harness. Was the bailment subsequently changed to a contract of sale? The first assignment of error, relating to the admission of a writing-dated January 25,1915, between the appellee and Wertz, who, it is claimed, bought the horses, was not pressed. Upon examination we find the assignment to be without merit, and it is therefore overruled.

The agreement has all the elements of a contract of lease dr bailment: Werley v. Dunn, 56 Pa. Superior Ct. 254. It should be treated as such unless the parties, by their acts, considered it as a contract of sale. To sustain the contention that it was a conditional sale, the appellant urges that the agreement provided that $100 should be paid every sixty days, and the deferred payments of rent “shall bear interest” and “shall be evidenced by promissory notes.” Provisions for interest and promissory notes are recognized as being legitimate parts of a bailment contract in Pennsylvania: Byers Machine Co. v. Risher, 41 Pa. Superior Ct. 469; Link Machinery Co. v. Continental Trust Co., 227 Pa. 37; Lippincott v. Scott, 198 Pa. 283; Euwer v. Greer, 29 Pa. Superior Ct. 262. But it is urged that the lessee, in compliance with this stipulation in the contract, instead of giving notes each for. $100, due at intervals of sixty days, gave one note for the entire sum due in sixty days. At the end of that period $100 was paid and a new note was given. This we think was a substantial compliance with the agreement. The lessee might have given notes as indicated by the Appellants, but inasmuch As the contract of bailment controlled the note, the lessee was in no way injured. There was no act on the part of the owner of the note to regard it as payment, and when the required $100 was paid at the end of the sixty days, and the renewal note was given, it is clear the parties regarded the bailment contract as being in full force. . The renewal note, however, was not due in sixty days, but in three months; and in addition to A. S- Wertz, the lessee, John L. Wertz, joined as a maker. The fact that the lessor accepts additional security for rent or hire would not cause a contract of bailment to become a conditional sale. Nor would the circumstance of giving additional time in which to pay the rent have that effect. Where' the parties are acting in good faith and intending creditors are not misled, they should not be put to a strict, unalterable performance of the written contract of bailment. Many, cases arise wherein it is highly meritorious that arrangements just such as these should be given due effect, without changing the substantive character of the agreement of bailment. Written contracts are generally the subject of change or modification after their execution. What we have here said applies to the subsequent notes given.

The levy in this case was made before the end of the term specified in the lease. At its expiration a further extension of time was given and a new note taken for the rent. Apart from the rule that the question of title is to be determined at the time of the levy, this further extension was within the contractual rights of the parties as bailor and bailee. The bailor did not put it out of his power to proceed on the bailment contract, though the note was discounted; he did not take step to enforce its collection, and when called for the lessee’s note was in the bailor’s possession as his property, representing the balance of the rent reserved in the "bailment. The notes were not accepted as payment either by the contract or act of the bailor, and should not be regarded as payment until actually paid: N. Penn Iron Co. v. N. J. Bridge Co., 35 Pa. Superior Ct. 84. Where the bailor elects not to proceed upon the notes, but retains them and proceeds upon the lease, the bailment con- t tinues in force and the goods remain his property. Hav- j ing asserted his claim under the contract of bailment, he 1 cannot proceed on the notes given for the rent: Jacob v. Groff, 19 Pa. Superior Ct. 144.

The judgment of the court below is affirmed,