Opinion,
Mr. Justice Sterrett:
As claimant of the property in controversy, it was incumbent on the plaintiff to prove that he was the owner thereof when it was levied on at the suit of defendant against Aaron Whitaker. For that purpose, evidence was introduced to show that, in 1879, the greater part of the property in question was taken in execution and sold by the sheriff to Isaac Livingston, [545] who thereupon transferred the same to plaintiff, in whom the title thereby became absolutely vested. In affirming his first point without any qualification, the court, in effect, said:
“ The record and documentary evidence in the case shows that on the seventh day of April, 1879, Isaac Livingston became the owner of certain personal property, consisting of furniture, etc., in the Exchange Hotel, by virtue of a sheriff’s sale to him on an execution against Aaron Whitaker, the occupant and keeper of said hotel, which property he afterwards sold to William Stoddart, the plaintiff, whereby (there being no evidence to the contrary) said Stoddart became the bona-fide owner of said personal property.”
It was further shown, by the testimony of Whitaker and the plaintiff himself, that under a verbal agreement between them, the property was allowed to remain in Whitaker’s possession for the purpose of enabling him to continue the business of hotel keeping, and thus support himself and family, etc. As to the terms of that agreement, there was no material conflict of testimony. The defendant offered no evidence; but, resting his defence solely on the testimony of Whitaker and the plaintiff, he contended that the agreement to which they respectively testified, was, in effect a conditional sale of the property to Whitaker; and he therefore requested the court to charge “ that under all the evidence in the case, the verdict of the jury must be for the defendant.” The learned judge of the Common Pleas, concurring in that view, refused to affirm plaintiff’s second, third, and fourth points, and directed a verdict for defendant. That action of the court is the subject of complaint in several specifications of error.
The plaintiff’s contention was that the transaction between himself and Whitaker was a bailment, and not a conditional sale; that, by its terms, no such ownership or interest in the property was vested in Whitaker as subjected the same to levy and sale on an execution against him. His points for charge, above referred to, were predicated of that view of the testimony and construction of the verbal agreement under which plaintiff permitted his property to remain in Whitaker’s possession, to be used in conducting his business, etc. In the second point, the court was requested to charge that “ a loan of personal property, subject to be turned into a sale by compliance with [546] certain conditions, does not vest in the bailee such an ownership as subjects the property to levy and sale upon an execution for his debt.” Without affirming or denying the correctness of this legal proposition, the learned judge refused the point solely because in his opinion it was “not applicable to the case.” He had already ruled that the transaction was a conditional sale, and not a bailment. After referring in his third point to the uncontradicted evidence, that all the property described in defendant’s levy, etc., except a couple of articles, is the same that Isaac Livingston purchased at the sheriff’s sale, and afterwards transferred to him, the plaintiff requested the court to charge:
“ If the jury believe this evidence, and that Stoddart loaned this property to Whitaker, with the understanding that he (Stoddart) might take it away at any time, and with the further understanding that whenever Whitaker paid him what the property cost him he would transfer it to him, such arrangement did not vest in Whitaker an ownership that-would subject the property to levy and sale on an execution for his debt; and, if Whitaker’s possession has been retained with this understanding, the jury should find, as to this property, in favor of the plaintiff.”
This point appears to be in full accord with the testimony, and was clearly warranted thereby; and this is especially true as to the substance of the arrangement under which the property was permitted to remain in Whitaker’s possession. The testimony on that subject was clearly for the consideration of the jury; and, if it had been submitted to them under proper instructions, it is difficult to understand how they could have reached any other conclusion than that the material facts were as stated in that part of the point last above quoted. But, instead of submitting any question of fact to the jury, the learned judge held that the transaction referred to was a conditional sale, and accordingly directed the jury to find for defendant. In that we think there was error.
For the same reason there was also error in refusing plaintiff’s second point, and in charging as recited in the fourth to seventh specifications, inclusive. The testimony of Whitaker and that of the plaintiff himself tended to prove the facts of which the fourth point is predicated, and there was no direct evidence to the contrary. It follows that the point should have [547] been affirmed, and the jury permitted to pass upon the questions thus presented.
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Opinion,
Mr. Justice Sterrett:
As claimant of the property in controversy, it was incumbent on the plaintiff to prove that he was the owner thereof when it was levied on at the suit of defendant against Aaron Whitaker. For that purpose, evidence was introduced to show that, in 1879, the greater part of the property in question was taken in execution and sold by the sheriff to Isaac Livingston, [545] who thereupon transferred the same to plaintiff, in whom the title thereby became absolutely vested. In affirming his first point without any qualification, the court, in effect, said:
“ The record and documentary evidence in the case shows that on the seventh day of April, 1879, Isaac Livingston became the owner of certain personal property, consisting of furniture, etc., in the Exchange Hotel, by virtue of a sheriff’s sale to him on an execution against Aaron Whitaker, the occupant and keeper of said hotel, which property he afterwards sold to William Stoddart, the plaintiff, whereby (there being no evidence to the contrary) said Stoddart became the bona-fide owner of said personal property.”
It was further shown, by the testimony of Whitaker and the plaintiff himself, that under a verbal agreement between them, the property was allowed to remain in Whitaker’s possession for the purpose of enabling him to continue the business of hotel keeping, and thus support himself and family, etc. As to the terms of that agreement, there was no material conflict of testimony. The defendant offered no evidence; but, resting his defence solely on the testimony of Whitaker and the plaintiff, he contended that the agreement to which they respectively testified, was, in effect a conditional sale of the property to Whitaker; and he therefore requested the court to charge “ that under all the evidence in the case, the verdict of the jury must be for the defendant.” The learned judge of the Common Pleas, concurring in that view, refused to affirm plaintiff’s second, third, and fourth points, and directed a verdict for defendant. That action of the court is the subject of complaint in several specifications of error.
The plaintiff’s contention was that the transaction between himself and Whitaker was a bailment, and not a conditional sale; that, by its terms, no such ownership or interest in the property was vested in Whitaker as subjected the same to levy and sale on an execution against him. His points for charge, above referred to, were predicated of that view of the testimony and construction of the verbal agreement under which plaintiff permitted his property to remain in Whitaker’s possession, to be used in conducting his business, etc. In the second point, the court was requested to charge that “ a loan of personal property, subject to be turned into a sale by compliance with [546] certain conditions, does not vest in the bailee such an ownership as subjects the property to levy and sale upon an execution for his debt.” Without affirming or denying the correctness of this legal proposition, the learned judge refused the point solely because in his opinion it was “not applicable to the case.” He had already ruled that the transaction was a conditional sale, and not a bailment. After referring in his third point to the uncontradicted evidence, that all the property described in defendant’s levy, etc., except a couple of articles, is the same that Isaac Livingston purchased at the sheriff’s sale, and afterwards transferred to him, the plaintiff requested the court to charge:
“ If the jury believe this evidence, and that Stoddart loaned this property to Whitaker, with the understanding that he (Stoddart) might take it away at any time, and with the further understanding that whenever Whitaker paid him what the property cost him he would transfer it to him, such arrangement did not vest in Whitaker an ownership that-would subject the property to levy and sale on an execution for his debt; and, if Whitaker’s possession has been retained with this understanding, the jury should find, as to this property, in favor of the plaintiff.”
This point appears to be in full accord with the testimony, and was clearly warranted thereby; and this is especially true as to the substance of the arrangement under which the property was permitted to remain in Whitaker’s possession. The testimony on that subject was clearly for the consideration of the jury; and, if it had been submitted to them under proper instructions, it is difficult to understand how they could have reached any other conclusion than that the material facts were as stated in that part of the point last above quoted. But, instead of submitting any question of fact to the jury, the learned judge held that the transaction referred to was a conditional sale, and accordingly directed the jury to find for defendant. In that we think there was error.
For the same reason there was also error in refusing plaintiff’s second point, and in charging as recited in the fourth to seventh specifications, inclusive. The testimony of Whitaker and that of the plaintiff himself tended to prove the facts of which the fourth point is predicated, and there was no direct evidence to the contrary. It follows that the point should have [547] been affirmed, and the jury permitted to pass upon the questions thus presented.
It is not our purpose to review the evidence to which reference has been made. It is enough to know that, if the jury had been permitted to consider it, they would have been warranted in finding, as already suggested, that the property was not sold to Whitaker, but merely loaned to him, for the purpose above stated, with the understanding that plaintiff might take it away at any time; and with the further understanding that, whenever Whitaker paid him what the property cost him, it would be transferred to him; and further that the property never was so paid for, but merely remained in Whitaker’s possession, with the understanding that possession thereof might be resumed by plaintiff at any time. Speaking of the arrangement, plaintiff testified: “ If I got dissatisfied with the thing, o f course I was to take possession of it and dispose of it at any time it suited me.” Speaking of the terms on which plaintiff permitted the property to remain in his possession, Whitaker testified: “ He let me have the furniture there as a matter of course, and if I could pay him back, why, he was to sell me back the furniture or do what he pleased with it. It was his furniture. It is his furniture to-day. I do not own a dollar of it.” Again, in answer to the question whether he had ever made enough out of the business to pay plaintiff anything that he ever put into the hotel, he said: “ No, sir; I never made enough, and up to last January I am eleven hundred dollars out besides.” The agreement of the parties was oral, and, as was said in Maynes v. Atwater, 88 Pa. 497, “ The sense of words used in connection with what the parties intended to express by them is exclusively for the jury to determine;” or, as the principle is stated in Forrest v. Nelson, 108 Pa. 487, “ If the contract is verbal, it is, of course, the exclusive province of the jury to inquire and ascertain what the parties meant; if it is in writing, its construction is for the court.” Assuming that the jury might have found the facts as claimed by the plaintiff, and strongly indicated by the evidence, the transaction was a bailment, similar in principle to that in Maynes v. Atwater, supra. In that case it was ruled that retention of possession by a former owner of personal property sold at sheriff’s sale is not a badge of fraud, nor does leaving the property with the former owner warrant the inference [548] that the purchaser either sold or gave it to him so as to authorize its seizure again as the debtor’s property. It follows from what has been said that the judgment cannot be sustained.
Judgment reversed, and a venire facias de novo awarded.