Collins v. Houston

Citations

• 138 Pa. 481
• 21 A. 234
• 1891 Pa. LEXIS 1127

Syllabus

<p>(a) Plaintiffs brought replevin, for timber in the possession of the defendant as the assignee for creditors of Wilkins, to whom the plaintiff's had sold it before the assignment, with the condition, as alleged, that the title was not to pass till the purchase money was paid. Under the plea of non-cepit and property, the defendant asserted that the sale was absolute :</p> <p>1. In such case, the plaintiffs were entitled to and received the proper instruction that, as the defendant was the direct representative of Wilkins, his assignor, standing in his shoos, as between the plaintiffs and the defendant and creditors of the assignor claiming through the assignee, the conditional sale if found to be as claimed was valid.</p> <p>2. There being evidence that, shortly after the time of the sale alleged, the vendee removed the plaintiffs1 lines from the timber, substituted his own, and tabbed and left the plaintiffs’ lines at the railroad station for shipment to them, it was not error to submit to the jury whether there was notice to the plaintiffs that their timber had been appropriated by the vendee to liis own uses.</p> <p>3. The first agreement as to the sale being by parol, and the purchase money ascertained by a subsequent measurement, when a memorandum and a receipt in writing were made and passed, indicating the terms of sale, it was correctly submitted to the jury to determine on all the evidence in the cause, verbal and written, what the real contract between the parties was.</p> <p>4. There being evidence that the plaintiffs, present at a creditors’ meeting before which was laid the inventory of the assigned estate including the timber, did not then assert their continuing title, the court properly refused to instruct that there was an estoppel, but left to the jury to say how far the facts tended to rebut the plaintiffs’ allegations.</p> <p>5. The timber in dispute having been delivered to the plaintiffs under the writ, it was not error to instruct the jury