Levan v. Wilten

Citations

• 135 Pa. 61
• 19 A. 945
• 1890 Pa. LEXIS 1151

Syllabus

<p>(a) Plaintiff in trespass bought a horse from defendant, the price to he paid part in cash and the remainder in monthly instalments, and the title not to pass to the plaintiff until all the purchase money should be paid. Plaintiff received the horse,'paid the cash payment and one monthly instalment.</p> <p>(5) Unable to pay the next instalment, the plaintiff gave Ms note for the entire balance, without other change in the terms of the original contract. This note, and a renewal of it given after the instalments were all payable, being dishonored, the defendant took possession of the horse peaceably:</p> <p>1. The testimony containing nothing to overcome the presumption of law that the note given was not to be payment unless it was itself paid, the jury should have been instructed that the title to the horse when retaken was still in the defendant under the original contract.</p> <p>2. The title being still in him, the jury might well have found that the resumption of possession under the circumstances was a reasonable exercise of the right of rescission; but if they did not, the plaintiff’s interest in the horse was but tho amount he had paid, which was the measure of Ms damages recoverable.</p>