Appeal, No. 1, Jan. T., 1952, from judgment of Court of Common Pleas of Northampton County, April T., 1949, No. 78, in case of Clark Hahn v. Frederick F. Andrews et ux. Judgment affirmed.
S. Maxwell Flitter, with him Everett Kent, for appellant.
Francis H. S. Ede, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a judgment for the defendants entered on a verdict in their favor in a replevin action. The plaintiff-appellant assigns as error the refusal of his motions for a new trial and for judgment non obstante veredicto.
On or about August 16, 1948 the plaintiff entered into an oral contract with the defendants. Although plaintiff contended that the terms of this contract were that he would pay $2,500 and receive defendants' fuel oil truck, the jury's verdict establishes that the terms were, in accordance with the defendants' claim, that plaintiff was to pay the sum of $4,800 and receive in return defendants' entire retail fuel oil business including the oil truck as a part thereof; and that at the time of the agreement the plaintiff gave defendants a check for $2,500 on account, received the truck but never paid the remaining $2,300.
In March, 1949 the defendants had the truck taken from the plaintiff and towed it away, whereupon the plaintiff instituted this suit in replevin with bond. The case was tried before a jury which, as stated, rendered a verdict for the defendants. The court moulded the verdict to read: "Verdict for the defendants, valuation $2500.00 [the amount in the plaintiff's affidavit of value].", and entered judgment thereon.
Appellant first contends that he obtained title and the right to possession of the truck when the appellees delivered it to him. However, the jury concluded otherwise and there is ample evidence to support such conclusion. Defendant Frederick F. Andrews testified that
plaintiff was to receive title to the truck only upon payment of the balance of $2,300 due on the entire purchase and that the truck was not sold separately to the plaintiff. The wife-defendant also testified that title to the truck was to remain in the defendants until the $2,300 was paid. Paper title was never transferred to the plaintiff. From this testimony and other testimony adduced on behalf of defendants the jury had the right to infer that the delivery of the truck to the plaintiff and his consequent right of possession of the same were conditioned upon his paying the remaining amount due under the contract. It is undoubtedly true that a buyer may maintain an action of replevin for goods sold to him even if he never had actual physical possession: Westinghouse Air Brake Company v. Harris, 237 Pa. 203, 82 A. 78. But, the question is always one of the intention of the parties and if, conversely, the jury finds as they did here, that the intention of the parties is that upon nonpayment of a balance due upon a contract the seller has the right to possession, the buyer may not maintain an action of replevin even though there has been physical delivery of the subject matter to him: John Summerson v. William Hicks et al., 134 Pa. 566, 19 A. 808.
Plaintiff also argues in this connection that even though the jury found for the defendants, the lapse of time from August, 1948 (when the contract was made) until March, 1949 (when the defendants took the truck) establishes as a matter of law that defendants had waived any right to possession which they might have had. For this proposition plaintiff relies upon the case of Frech v. Lewis, 218 Pa. 141, 67 A. 45. In that case the contract provided for immediate payment and the seller delivered the goods without any reservation. The ...