Stuart A. Culbertson, Meadville, for appellants.
Raymond P. Shafer, District Attorney, Meadville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.
[ 166 Pa. Super. Page 17]
Appellants, husband and wife, separately appealed from convictions for larceny. The court below overruled their motions for new trials and arrest of judgment. The husband was sentenced to pay a fine of $50 and make restitution. Sentence was suspended in the wife's case.
The case arose out of a real estate transaction. By a written instrument appellants agreed to sell their farm to the prosecutor and his wife.*fn1 The agreement did not include any personal property but it did cover: 'All buildings, plumbing, heating, lighting fixtures, screens, storm sash, shades, blinds, awnings, shrubbery and plants.' The purchasers took possession on June 14, 1946, and discovered that certain articles which had been on the premises at the time the agreement of sale was executed were missing. They were a commode which had never been attached and lay on the back porch in its shipping crate, an unattached washstand which had been stored in a bedroom, a hay carriage used in the barn, an
[ 166 Pa. Super. Page 18]
electric stove cord extending from the switch box in the cellar to the kitchen, and 30 or 35 peach trees.*fn2 These articles were charged in the indictment as subjects of the larceny.
The Commonwealth contended that the articles which were not covered by the written contract had been sold by an oral agreement between the parties. Appellants denied the oral agreement; denied the sale of the personal property; denied taking the trees; admitted they took the hay carriage; and as to all the articles which they took they contended that they were taken under a claim of right and therefore not feloniously. The jury found against them and, although they contend that the evidence is not sufficient in law to sustain a conviction, we shall assume, for the purpose of this decision, that the testimony established a sale of the personal property by appellants to the prosecutor and his wife. That is, that appellants sold but failed or refused to deliver the goods to the purchasers. Are sellers who refuse or fail to deliver goods sold to their purchasers guilty of larceny?
Based upon respectable authority,*fn3 the accepted rule has been thus stated in 52 C.J.S., Larceny, § 44(b): 'A seller of chattels who, after receipt of the purchase price, refused to deliver them to the buyer is not guilty of their larceny, since he has never parted with the possession,
[ 166 Pa. Super. Page 19]
and, where the possession of a chattel never passed to the purchaser thereof, even though the seller may have been holding it under the purchaser's consent, the seller may not be held guilty of larceny thereof.' Appellants had possession of the goods, not mere custody of them. The evidence indicates that they were allowed to retain possession without trick or artifice and without fraudulent intent to convert them.*fn4 Presumably title passed upon payment of the purchase price; nevertheless appellants had lawful possession thereafter. 'One who is in lawful possession of the goods or money of another cannot commit larceny by feloniously converting them to his own use, for the reason that larceny, being a criminal trespass on ...