Stiles v. Seaton , 200 Pa. 114 ( 1901 )

Opinion by

Mu. Justice Mitchell,

Appellant claims first that the machinery was delivered under a verbal contract of sale, and that this fact should at least have been submitted to the jury. But there was no sufficient evidence on which the jury could have so found. A conversation took place in which the owner stated that he had machinery to dispose of which would fill the empty room in the mill, and defendants said they had room for it and would take it. This is the utmost that was testified to. No price was named nor any time or terms of payment. Before complete delivery was made the parties signed the written agreement on which plaintiff sues. It is evident that this was regarded by both parties as the completion of the previous inchoate understanding, and the learned judge was clearly right in holding that the writing was the only contract between the parties.

But even if there had been a complete verbal agreement to sell, no title passed until delivery. The vendor might still rescind, or the parties change it to a bailment. “ The fact that the original intention of the parties is to make a sale, and that such is the legal effect of their first agreement, does not prevent a change while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with the stipulated conditions: ” Goss Printing Press Co. v. Jordan, 171 Pa. 474.

Secondly, the appellant argued that the written agreement was one of sale and not of bailment. The grounds of this contention are, (a) that the agreement contains no stipulation for the return of the machinery except the right of plaintiffs to retake it on default in the payment of the instalments, or violation of the covenants as to underletting, selling, etc.; and (/;) that no definite term is stipulated for. But while both these provisions are important, and sometimes controlling evidence of the intention of the parties in executing the instrument, neither is essential to the existence of a bailment: Enlow v. Klein, 79 Pa. 488; Edwards’s Appeal, 105 Pa. 103. The bailee may at any time make default in the payments and thereby indicate his intention to give up possession. Ordinarily that will terminate the bailment, but if as here, the bailor has the option to affirm and continue the lease and to collect the payments in full, the case is the same as that of the lessee of a house, who, having stipulated to pay a certain amount of rent, must continue to pay though he does not choose any longer to occupy the premises. When the bailor has exercised his privilege to collect the full amount the instrument continues in force, and by its terms the bailment becomes a sale and title passes to the purchaser. In regard to the term it may be indefinite, at so much per week or month or other period, in which case it will have the effect of a lease at will, but is none the less a bailment so long as it continues in force.

Judgment affirmed.