Summerson v. Hicks

Citations

• 142 Pa. 344
• 28 W.N.C. 304
• 21 A. 875
• 1891 Pa. LEXIS 741

Syllabus

<p>(a) The right of a plaintiff in replevin to retain the property, replevied and delivered on his writ, depended on his payment of the price thereof on a conditional sale by the defendant. Before suit brought, he had made-a tender of the price, which, however, was not afterwards duly maintained on the trial.</p> <p>(6) After the reversal of a judgment in his favor, with a venire de novo, by leave obtained the plaintiff paid into court the price of the property, with interest, and, also by leave, the amount was afterwards taken out of court by the defendant, the liability for costs to be determined by the court without a jury:</p> <p>1. While the refusal of the fust tender by the defendant, was an error, she did not thereby forfeit her right, under the contract, to hold the title and possession until actual payment; and the penalty for refusing the tender was payment o£ the costs when the plaintiff’s demand was properly made: Summerson v. Hicks, 184 Pa. 566.</p> <p>2. But the plaintiff, in seeking to recover possession, without actual payment or a tender duly maintained, was not in a position to maintain his action, and was therefore liable to the costs thereof; and bringing the money into court, after the first trial, carried with it the liability to costs accrued to that time.</p> <p>3. Where a question, not raised in the court below, is raised on argument in the Supreme Court and treated by both parties as properly raised, without calling the attention of the court to it, the Supreme Court may pass upon the question as a basis of decision, with no intention of departing from the rule laid down in Phila. R. Co. v. Getz, 113 Pa. 214, and other cases: Per Mr. Justice Mitchell.</p>