Appeal, No. 193, April T., 1957, from judgment of Court of Common Pleas of Somerset County, No. 839, C.D. 1954, in case of Basore Construction Company v. Brinker Supply Company et al. Judgment reversed.
Frank A. Orban, Jr., with him Emanuel S. Leopold, Isaiah Scheeline, Jr., and Scheeline and Leopold, for appellant.
Archibald M. Matthews, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 11]
The sole question presented by this appeal is whether the lessor in a bailment lease may repossess the bailed article where the lessee has paid the full purchase price but has not paid the further sum of $1.00 prescribed by the agreement as the price for delivery of the bill of sale.
On June 18, 1951 Brinker Supply Company, hereinafter called "Brinker," as lessor, entered into written bailment lease with A. J. Stormer & Son, hereinafter called "Stormer," lessee, by which it leased a backhoe attachment, hereinafter called "backhoe," for a total rental of $2,400.00, $400.00 being payable upon the signing of the lease and $200.00 being payable on the 16th day of each and every month thereafter during the term of the lease "until the full amount of said rent is fully paid and discharged." The lease contained
[ 187 Pa. Super. Page 12]
the usual clause for return of equipment by the lessee to the lessor at the expiration of the term of the lease and also the usual provision for the payment of $1.00 by the lessee to the lessor and the execution and delivery thereupon of a bill of sale from the lessor to the lessee. The lessor also delivered to the lessee an invoice which set forth: "SOLD TO - A. J. Stormer & Son ... TERMS Net Cash ... I Backhoe Attachment for Model 42 Bay City Shovel $2400.00." Stormer paid Brinker all of the rental payments by check. The final check, dated in May 1952, which was accepted and cashed by Brinker, bore the notation: "Backhoe Att. In Full $200.009" Fred Brinker, Secretary of the defendant, admitted the receipt of these checks and the payment of the $2,400.00. He further admitted that no demand had ever been made with respect to this backhoe until June 1954, two years after the acceptance of the check marked "In Full." The backhoe remained in Stormer's possession until his death in August 1953, when it was being used as a part of the construction equipment employed by him in the performance of a contract which he had undertaken for the Shippensburg Borough Authority. Stormer defaulted in the performance of his contract with the Authority, whereupon it took over the completion of the work as provided in its contract with Stormer and in that connection took possession, inter alia, of the backhoe here in suit. The Authority thereafter contracted with Basore Construction Corp., hereinafter called "Basore," for the completion of the work and the Authority delivered possession of the backhoe to Basore. On July 3, 1954 Brinker took possession of the backhoe at Shippensburg and removed it to Somerset, where it was located at the Firestone Equipment Repair lot by the Sheriff of Somerset County, pursuant to the writ of replevin issued by Basore. Basore filed its
[ 187 Pa. Super. Page 13]
bond in the amount of $5,000.00 and the sheriff delivered the backhoe to it. In the replevin action the jury rendered a verdict for the defendant Brinker, allowing $2,500.00 as the value of the backhoe, in favor of Brinker and against Basore. Basore took this appeal from the refusal of its motions for the entry of judgment n.o.v. or, in the alternative, for a new trial. We are satisfied that judgment n.o.v. should have been entered for Basore.
Basore's possession rested upon the property rights of Stormer. The rental payments having been made in full, payment of the $1.00 nominal consideration for the bill of sale for the backhoe was unnecessary to vest title in Stormer. Brinker defended solely upon the fact that the $1.00 nominal consideration had not been paid by Stormer to it. The court below took the position that ...