Willey Motor Co. v. Ervin Son , 86 Pa. Super. 505 ( 1925 )

Argued October 14, 1925. This is a sheriff's interpleader issue to determine the title to and ownership of an automobile levied upon in execution as the property of one Sarah T. Christie. The claimant, Guy A. Willey Motor Co., and the execution creditor, A.F. Ervin Son, agreed upon the relevant facts and embodied them in a case stated.

It is therein stipulated that if the "relation between the claimant and Sarah T. Christie was one of conditional vendor and conditional vendee under a contract of conditional sale, then judgment shall be entered in favor of the defendants herein, ...... the plaintiffs in the execution, in the sum of $472.44 with interest," etc., but "if the court shall be of the opinion that the relation between said parties was that of bailor and bailee, under a bailment contract, then judgment shall be entered in favor of the claimant."

From the facts agreed upon in the case stated there can be no doubt that the original contract was one of conditional sale; but the automobile was not delivered to Miss Christie upon the execution of that contract. Delivery was not made until twelve days later, and co-incident therewith the parties entered into a new contract relative to the automobile, which we are satisfied was one of bailment. While the contract was still executory there was nothing to prevent the parties from changing the contract from one of conditional sale to a bailment, no rights of creditors having intervened. "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 Co. v. Jordan, 171 Pa. 474; Stiles v. Seaton, 200 Pa. 114, 118": Federal Sales Co. v. Kiefer, 273 Pa. 42, 44. To the same effect see Schmidt v. Bader,284 Pa. 41; National Cash Register Co. v. Shurber, 41 Pa. Super. 187,190. These cases, in our opinion, rule this appeal in favor of the appellant and require a reversal of the judgment. While a contract is executory, an agreement by one party to change or modify it is a consideration for a like agreement by the other: Dreifus v. Columbian Exposition Salvage Co., 194 Pa. 475; McNish v. Reynolds, 95 Pa. 483.

That the second and final agreement between the parties was a contract of bailment is likewise settled by the decisions in Federal Sales Co. v. Kiefer, supra; and Stiles v. Seaton, supra; and Jones v. Wands, 1 Pa. Super. 269; Rieker v. Koechling,4 Pa. Super. 286; and Porter v. Duncan, 23 Pa. Super. 58. These cases all hold that an express stipulation to return the bailed property at the expiration of the term is not an essential requisite of a bailment contract. The term in the present bailment is more definite than that in Rieker v. Koechling, supra, which was sustained by this court.

The judgment is reversed and is now entered for the plaintiff.