Gernert v. Knerr , 3 Pa. Super. 47 ( 1896 )

Opinion by

Willard, J.,

The paper executed by Frank J. Heller on February 24,1894, and delivered to Frank Gernert, the appellee, was construed by the court to be a bailment of the property mentioned therein, and with this construction all other matters in the controversy were dismissed and the jury directed to render a verdict for the appellee.

If Frank Gernet was the undisputed owner of the property as recited in the paper executed by Heller, this judgment might be sustained, but the question of ownership was not only prominent but of vital importance to the appellant on the trial of the issue. The evidence on that question was by no means one-sided or free from doubt. It should have been submitted to the jury under proper instructions, and if they found the ownership in Frank Gernet, the paper creating the alleged bailment correctly construed could have been submitted in the determination of the issue. If, on the other hand, the jury had found the possession and ownership in Frank J. Heller, the paper creating the alleged bailment would have been irrelevant.

.Without specific reference to the evidence, it appears that the property was in the possession of Heller from 1892 to the date of the sale by the sheriff on the appellant’s execution. True, it was on the farm of the appellee, and it is also true that by another alleged agreement (not before us) the appellee claimed the ownership, but all of this testimony was for the jury, to enable them to determine the facts and find the ownership in the party entitled to it under all the evidence.

Observing the rules adopted by a majority of this court in Weller v. Meeder, 2 Pa. Superior Ct. 488, and cases there cited, we are clearly of the opinion that the question of title to the property in dispute should have been submitted to the jury. The second and fourth assignments are sustained, the first and third overruled, the judgment reversed and a venire facias de novo awarded.