Appeal, No. 244, Jan. T., 1952, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1949, No. 1772, in case of Speck Cadillac-Olds, Inc., v. George Goodman et al., trading as General Automobile Outlet. Judgment reversed; reargument refused March 24, 1953.
Israel Packel, with him Speiser, Satinsky, Gilliland & Packel, for appellant.
David S. Malis, with him Malis, Malis & Malis, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an action in replevin without bond to recover five Cadillac automobiles or their value.
In August and September of 1949 the plaintiff corporation, Speck Cadillac-Olds, Inc., delivered thirteen new automobiles to one Rosen, a plumbing and heating
contractor. Ten of these automobiles, including the five Cadillacs here in dispute, were resold by Rosen to the defendant partnership*fn1 which was engaged in the used car business.
On September 21, 1949 plaintiff agreed to deliver the five Cadillacs to Rosen, three of which were then available. Rosen had previously agreed with defendant to resell these three automobiles to the latter. Plaintiff claims to have had no knowledge of this arrangement, and that its understanding was that Rosen was buying these cars for friends; that payment was to be made to plaintiff when Rosen received payment from his friends and that title would pass at that time. Three Cadillacs were prepared for delivery by plaintiff on September 21, 1949, and at that time plaintiff gave to Rosen temporary invoices, temporary registration certificates and temporary license tags. At the same time the plaintiff also executed assignments of title and Rosen executed applications for the issuance of title to him which were sent through an intermediary to the Department of Revenue at Harrisburg.*fn2 These
three automobiles, with the temporary license tags attached, and with a pink copy of the temporary registration certificates in Rosen's name, were delivered by plaintiff (at Rosen's direction) to a public garage, where they were immediately turned over by Rosen to defendant. Defendant had previously given $13,600 to Rosen's ...