though the original intention of the parties was to make a sale and their present intention is that a sale shall take place on compliance with the conditions of the lease. The use of a bailment lease under such circumstances rebuts any presumption that the owner was willing to sell the chattel purely on credit which might arise from his original intention to make a sale. In the absence of evidence showing such a willingness the form into which the parties have cast their transaction will be sustained. Leitch v. Sanford Motor Truck Co., 279 Pa. 160, 123 A. 658; Brown Bros. v. Billington, 163 Pa. 76, 29 A. 904, 43 Am.St.Rep. 780; General M.A. Corp. v. Hartman, 114 Pa.Super. 544, 174 A. 795; National Cash Register Co. v. Shurber, 41 Pa. Super. 187.
Applying these principles to the present case, we may admit, as the Circuit Court of Appeals did in General Motors Acceptance Corporation v. Horton, supra, and as the referee found, that the transaction between the parties amounted in fact to a conditional sale. We may also admit that it was their intention by adopting the form of a bailment lease to secure the payment of the purchase price. It does appear, however, that the parties themselves cast the transaction into bailment lease form, and we find no evidence in the record that a conditional sale had been made or completed prior to the execution of the lease. Nor do we find any evidence indicating that the petitioner was willing to make sale to the bankrupt purely on credit. On the contrary, its insistence upon the use of a bailment lease clearly indicates its unwillingness to do so.
The trustee in bankruptcy, however, calls our attention to the testimony that after the transaction was entered into it was described by representatives of the petitioner as a sale, the bankrupt's testimony being that they said: "Didn't you buy that register? * * * We sold it. You will have to keep it." He argued that by these statements the petitioner defined the contract as a sale. That statements of this character made after the transaction was completed are not sufficient to change the bailment into a conditional sale is ruled by National Cash Register Company v. Shurber, supra. In that case a bailment lease, substantially the same as the one here involved, was entered into under very similar circumstances. About a month afterward the bailees left the cash register with one Liberakis to be delivered to the bailor. Thereupon the bailor forwarded to Liberakis a box in which to ship the register back to them and at the same time one of its agents wrote him a letter in which it was stated: "Vergos & Kyramis, who were in business in your town, and to whom we sold one of our cash registers. * * *"
Although it does not appear in the opinion of the superior court, an examination of the printed record in that case discloses that about a month later a representative of the bailor wrote another letter to Liberakis stating: "Some time ago we wrote you with reference to register which we sold to Vergos & Kyramis. * * *" The record in the Shurber Case also discloses that the defendant in that case strongly urged that these two statements by representatives of the bailor that they had sold the register to the defendant constituted evidence that the transaction was a conditional sale of sufficient weight to require that question to be submitted to the jury. The court below ruled, however, that the contract was one of bailment lease and so instructed the jury, which found for the plaintiff. The superior court affirmed the judgment, holding that the court was right in its construction of the writing which contained all the essentials of a contract of bailment.
It will thus be seen that the statements alleged to have been made by the officers of the petitioner in the present case were essentially similar to those relied on in the Shurber Case and the written instrument in each case was also essentially the same. Upon the authority of that case and the other Pennsylvania decisions to which we have referred, as well as General Motors Acceptance Corporation v. Horton, supra, the order of the referee must be overruled.
The order of the referee is overruled and the trustee in bankruptcy is ordered to turn over and deliver to the National Cash Register Company the cash register described in its reclamation petition.
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