He has vindicated his conclusions with a characteristically full and clear discussion which leaves nothing to be added.
We are merely repeating ourselves, but it is evident from the additional briefs submitted that the view the referee has taken and which we have attempted to present has not been made clear to counsel for the claimant. This is doubtless due to the simplicity of the thought. It is so obviously true that its truth is overlooked. In the concrete it is this:
A is in possession of property under a claim of ownership. B, who may or may not be the owner, seeks to reclaim the property as belonging to him. He submits a so called bailment lease from B to C. It is obvious this is no evidence as against A of title in B. There may be another type os case. B, admitted to have been the owner of property at the time of the bailment, makes one to A or to A's predecessor in title. The bailment is evidence of title against A.
The case of Kinding v. Wertz (Pa. Super.) 176 A. 769, is of the latter type. In the first type it is not in point. There the action was based upon the title being in the claimant when the bailment lease was made. The question presented was one arising out of the contract of bailment. The controversy was between the parties to the bailment. As between them it is controlling and the question becomes wholly one of the construction of the writing. If, however, the rights of the person in possession rise higher than those of the bailee, the question is not one of the construction of the contract but whether the bailor has parted with his title. He has parted with it if he sold it. Whether he sold it is a fact. As between the bailor and bailee the writing controls, but as between the bailor and a third party the fact controls. The seller, as we have several times said, cannot change a sale into a bailment, as against a third party, by calling it a bailment or by entering into a bailment agreement with another. Whether it is a sale or bailment is a fact finding to be made under all the evidence. The question is not one of the construction of the agreement alone.
The learned referee has made this distinction so clear that it would be a waste of words to dwell upon it. He has reached the fact conclusion that the transaction was a sale. With this finding we are in hearty accord. He has supported this finding with a discussion which is convincing, and to that we leave it.
The order heretofore made dismissing the petition for review, etc., is confirmed and re-entered.
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