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COLES ET AL. v. SUTPHEN (09/27/50)

September 27, 1950

COLES ET AL.
v.
SUTPHEN



COUNSEL

Paul A. Koontz, Bedford, for appellant.

Ellis William Van Horn, Jr., and Richard C. Snyder, Both of Bedford, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Ross

[ 167 Pa. Super. Page 458]

ROSS, Judge.

This is an action of trespass for the conversion of certain ore crushing machinery. The plaintiffs, James G. Coles and J. Harry Simon, secured a verdict in the amount of $1,200. Defendant's motions for judgment n. o. v. and for a new trial were overruled, judgment entered on the verdict, and the defendant took this appeal.

The plaintiffs conducted the business of mining, quarrying and removing certain ores from various parcels of land in Bedford County. On or about June 8, 1925, the plaintiff Coles became the owner of a certain tract of land in that county, and on or about December 20, 1940, the plaintiffs purchased a stone crusher and conveyor which they caused to be erected upon the Coles tract. This equipment was used by the plaintiffs

[ 167 Pa. Super. Page 459]

    in their business for a time, but then they were forced to suspend operations because of inability to obtain a priority for materials during World War II. The stone crusher and conveyor were packed with preservative grease and left standing upon the land. On or about February 18, 1946, the Coles tract was conveyed to one Bussard by a deed of conveyance reserving to the grantor the mineral rights and specifically excepting the crusher and conveyor. This deed was recorded. Subsequently, on or about April 30, 1946, the land upon which the equipment was located was conveyed by Bussard to Peter O. Sutphen, the defendant herein. The latter deed made no reference to the crusher or conveyor.

At the time of the events which led to the instant dispute, the defendant operated a wood manufacturing plant in Everett, which in February of 1947 was being supplied with timber cut from a tract of land which adjoined the Coles tract. The defendant's son-in-law, R. A. MacIntosh, was 'in charge' of the defendant's timber cutting operations on this land. It appeared that the duties of MacIntosh were not confined to timber cutting. He was the defendant's assistant in the Everett office and as such had charge of making up payrolls and upon occasion signed business papers for the defendant. When the defendant was absent from his office MacIntosh was 'in charge'. On February 12, 1947, while the defendant was 'away on a trip', one Burket walked into the defendant's office and proffered $20.00 to MacIntosh as payment for the crusher and conveyor. MacIntosh testified (as a witness called by the plaintiffs) that he inquired whether Burket had been 'in contact with' the defendant and his attorney. Upon receiving an affirmative answer, MacIntosh accepted the $20.00 and executed the following writing: 'Scrap iron -- old mine crusher on Coles farm $20.00 Received payment Peter O. Sutphen per R. A. MacIntosh'.

[ 167 Pa. Super. Page 460]

MacIntosh put the $20.00 in the defendant's office safe. Shortly thereafter, Burket and his associate, Clark, entered upon the defendant's land and broke up and removed the crusher and conveyor. The plaintiffs, upon discovering that their equipment had been removed from the defendant's land, went to the office of the defendant, showed him the paper signed by MacIntosh, and said, 'You sold our equipment.' To this accusation the defendant replied, 'It was nothing but junk.' At no time did the defendant offer to return the $20.00 to Burket or otherwise attempt to rescind the transaction.

The plaintiffs' evidence established that the defendant's agent, MacIntosh, accepted twenty dollars from Burket, that he gave him a writing acknowledging that the money was received as payment for the mine crusher and conveyor and that shortly thereafter Burket and Clark entered upon the defendant's land and removed the plaintiffs' equipment. These circumstances form an adequate basis upon which a jury could predicate a finding that there had been a conversion of the plaintiffs' machinery by MacIntosh. A conversion may be committed by disposing of a chattel by a sale, lease, pledge, gift or other transaction intending to transfer a proprietary ...


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