McCray Refrigerator Co. v. Bacso

79 Pa. Super. 185, 1922 Pa. Super. LEXIS 210

• Court: Superior Court of Pennsylvania
• Decided: July 13, 1922
• Docket: Appeal, No. 132
• Status: Published

Opinion

Opinion by

Henderson, J.,

The plaintiff, claiming title to certain chattels' in the possession of the appellant, issued a writ of replevin therefor; at the service of which the latter gave a bond and retained the property. The court submitted to ‡,he jury the question of title and of the value of the property. It appears from the pleadings and the evidence that the subject of the controversy was delivered by the plaintiff to one John Bacso on a bailment lease with a provision for periodical payments of rent with a right to purchase for the sum of one dollar when rent in full was paid. Subsequently the appellant bought the business of Bacso and the latter delivered to him the property replevied along with other personal property. The lessee having failed to comply with his. contract, the plaintiff demanded a. return of its property which was refused by the appellant on the ground that it belonged to him. The request for judgment non obstante veredicto was based on the appellant’s contention that the plaintiff did not set forth in its declaration the facts on which its title to the property was based; that evidence of ownership by the plaintiff was not presented; and that the plaintiff was a foreign corporation doing business in Pennsylvania, but did not prove it had registered in compliance with the Act of 1911. Passing by a consideration of the right of the appellant to raise the question of the sufficiency of the plaintiff’s statement after a trial on the merits and without having raised the question in the affidavit of defense, the objection cannot be sustained, for it is asserted in the statement of claim that “the title in and to said goods and chattels has at all times been lawfully in the plaintiff herein, and this plaintiff is now entitled to custody and possession of said goods and chattels as against all other persons whatsoever.” This fairly implies that the plaintiff was the producer of the property and the absolute assertion of original ownership is sufficient. Moreover it1 is specifically set forth in the statement that the appellant derived his title from John Bacso who it1 is charged unlawfully delivered the property to the appellant, and it is therefore alleged the latter has no better title than Bacso could give him, and this source of title is admitted in the affidavit of defense. There is also affirmative testimony that the plaintiff by its agent delivered the property to Bacso pursuant to the terms of the lease.

It is asserted in the statement of claim that the plaintiff is a foreign corporation existing under the laws of Indiana, and that it is duly registered as a foreign corporation with the Secretary of the Commonwealth of Pennsylvania, as provided by law, and is now authorized t'o do and transact its corporate business as a foreign corporation in the State of Pennsylvania. This averment is not denied nor its effect overcome by a mere declaration in the affidavit of defense that the deponent has no knowledge on the subject and demands proof. But it is immaterial whether the plaintiff is a foreign corporation or not. It is here asserting title to some personal property which' it alleges belongs to it and is wrongfully withheld. The Act of June 8,1911, P. L. 710, does not deny to a foreign corporation the right to assert title by an action of replevin to chattels wrongfully withheld from it in this State. The plaintiff’s right does not rest on a contract with the appellant and the latter has no standing to object that the plaintiff may have been doing business with other persons in violation of the statute : U. S. Circle Swing Co. v. Reynolds, 224 Pa. 577; King Optical Co. v. Royal Insurance Co., 24 Pa. Superior Ct. 527. It is a misapprehension to suppose that the contract of lease is the basis of the plaintiff’s right. It is pleaded to be sure, but in explanation of the circumstances under which the plaintiff’s property passed into the possession of Bacso and from him to Schultz. The plaintiff’s title, however, existed before the lease was written and was not destroyed by that instrument. If it have any bearing on the case, it would be in relief of Bacso, if any right under it were asserted by him or by any person holding under him.

To an oral request to the court after the charge was delivered that there being no testimony to show the present custody of the goods or custody after the service of the writ, the most the plaintiff would be entitled to recover would be damages for tbe detention of tbe property, tbe court replied that the record showed a bond was given and the property retained by the defendant, whereupon the request was refused. It is objected now that the court should not have assumed this to be the case, notwithstanding the fact that the bond was attached to the sheriff’s return and the appellant in his history of the case states “Schulz gave a counterbond and retained the goods.” If the court had inadvertently misstated the evidence, it would have been the duty of counsel to bring the matter to the court’s attention, but' there was no suggestion then nor is there now that the fact was not as shown by the record. The charge on the question of damages was certainly as favorable to the appellant as he was entitled to have and we see no reason for a reversal on that subject.

The assignments are overruled and the judgment affirmed.