Hoofsmith v. Cope

6 Whart. 53, 1841 Pa. LEXIS 3

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1841
• Status: Published

Opinion

The opinion of the court was delivered by

Sergeant, J.

The charge of the court is so full and explicit, as to render it necessary to do little more than refer to it for the principles applicable to the case.

The questions asked by the defendant as to the consideration which passed from Cope to Kreider & Hanse, for the bill of sale, were properly overruled. It was immaterial what that consideration was, or whether there was any consideration at all. A mere gift would convey to Cope the interest of Kreider & Hanse; and the only question was, what was the title of Kreider & 'Hanse, thus conveyed, as against Hoofsmith, who alleged the conveyance to them by Sprenger to be -fraudulent and void against his creditors. On that subject the court properly instructed the jury, that if Cope, under the transfer to him by Kreider & Hanse, took actual possession before the execution issued by Hoofsmith, he could recover: if he had not taken actual possessipn, he could not recover: and whether he had or not, was properly left to the jury.

But it is contended that Sprenger had, by virtue of his contract with Kreider & Hanse, such an interest in and control over the property and possession, that the possession could not be taken by Cope against the will and without the consent of Sprenger. It would seem, however, that by the contract, as proved, Sprenger was merely employed by Kreider & Hanse as a clerk, at a salary of four hundred dollars a year, to sell the goods for Kreider & Hanse, and close the business: the lease of the store being taken by Kreider & Hanse, and the property in the goods vested in them by the bill of sale. Under these circumstances, as is stated in the charge of the court, Sprenger was no more than the servant of Kreider. & Hanse, bound to comply with their directions, and he could not resist either their entry on the premises, or their taking actual possession of all the property contained in the bill of sale. The master may discharge the servant at any time, and take actual possession of his own goods, remaining responsible for any violation of contract. Here it was deemed necessary for the master to do so; otherwise Sprenger, though as to Kreider & Hanse a servant, yet as to third persons, being the assignor, continuing in possession, his possession might not perhaps be so clearly the possession of Kreider & Hanse, that Cope might not run the risk of losing the property, if he did not reduce it to possession before execution issued by a judgment creditor.

As to the assignment to Kreider & Hanse, it seems they wére bona fide creditors of Sprenger, and if so, he had a right to prefer them by a bill of sale; it being incumbent on them or their assignee to see that possession was taken in time; otherwise it might come within the decided cases which make such assignment fraudulent and void, if not accompanied with possession. On this point the charge of the court was as favourable to the defendants as they could claim on the evidence.

We see no error in the principles laid dowrn by the court in its chárge; or in any of the points raised by the bills of exceptions.

Judgment affirmed.