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CLARK v. BELTZ. (07/21/55)

July 21, 1955

CLARK, APPELLANT,
v.
BELTZ.



Appeal, No. 42, Oct. T., 1955, from judgment of Court of Common Pleas of Carbon County, April T., 1953, in Equity, No. 3, in case of Russell Leroy Clark v. Harry E. Beltz, Cora Beltz and Raymond Lentz. Judgment reversed.

COUNSEL

Frank D. Llewellyn, for appellant.

Irving W. Coleman, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Gunther

[ 179 Pa. Super. Page 457]

OPINION BY GUNTHER, J.

This is a suit in equity to declare certain transfers

[ 179 Pa. Super. Page 458]

    fraudulent. Plaintiff was a creditor of defendant Harry E. Beltz and obtained a judgment by default against him November 14, 1951, for $1,382.37.This defendant was in the bottled gas business, and two days before judgment was entered, transferred all his gas equipment to his sister, the defendant Cora Beltz. He also transferred a truck and a car to the defendant Raymond Lentz during the time he owed money to plaintiff. The two transferee defendants were called by plaintiff as for cross examination and testified as to the transfers and the consideration therefor. The court below found that the transfers were not fraudulent and plaintiff has appealed.

Plaintiff contends first that the transfers should have been deemed fraudulent because there was no delivery of possession. The tanks or cylinders of gas remained in the custody of customers, who were using the gas therein. The court below held that this was a sale of goods in the hands of a bailee, in which case delivery of the goods is not required to make a bona fide sale of personalty. This was a proper statement of the law and the only finding and conclusion that could be made under the testimony. Since the gas tanks were of necessity in the hands of customers, no formal delivery was required. Selznick v. Holmes Pittsburgh Automobile Co., 275 Pa. 1, 118 A. 553.

However, the appeal is well taken as to the transfer of the car. Defendant Raymond Lentz testified that he bought Harry E. Beltz's Pontiac in October, 1950, at which time Beltz was admittedly indebted to plaintiff. The certificate of title was transferred at that time, but Lentz never took possession until two years later, when, on November 5, 1952, he sold it to a used car dealer. A buyer of an automobile who does not take possession but leaves custody in the seller takes the risk of the seller's insolvency and integrity and no title

[ 179 Pa. Super. Page 459]

    passes as against seller's creditors. Wendel v. Smith, 291 Pa. 247, 139 A. 873; Bowersox v. Weigle & Myers, 77 Pa. Superior Ct. 367. Lentz testified that he received $1,300 on the sale of the car, but this was directly repudiated by the ultimate purchaser who testified that he gave no money to Lentz, but instead turned over to Cora Beltz a Buick worth some $2,050, on which he gave her a $1,300 credit for the Pontiac sold him by Lentz. In view of the obvious complicity of Cora Beltz in this entire scheme, she is in effect one of the fraudulent transferees of this Pontiac, which has since been transformed into a $1,300 credit on her Buick. The court below failed to make findings in respect to lack of delivery to Lentz of this car, ...


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