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June 13, 1962


Appeal, No. 135, April T., 1962, from decree of Court of Common Pleas of Allegheny County, April T., 1943, No. 3615, in case of Mellon National Bank and Trust Company and Naomi Mooney, executors, v. Susan Wagner. Decree affirmed.


John B. Nicklas, Jr., with him McCrady & Nicklas, for appellants.

George R. Craig, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 198 Pa. Super. Page 291]


This action in replevin to recover a piece of tapestry was tried by a judge without a jury. His finding that the plaintiffs had not established title or right to possession of the tapestry was affirmed by the court en banc. The credibility of the witnesses and the weight to be accorded their testimony were for the trial judge.

[ 198 Pa. Super. Page 292]

Dr. Mooney issued a writ of replevin with bond for the tapestry in 1943, and, on his motion, it was impounded in the custody of the sheriff. In 1949 a suggestion of Dr. Mooney's death was filed and his executors were substituted as plaintiffs.

Since the important question in a replevin action is whether the plaintiffs are entitled to immediate possession of the property as against the defendant, the real inquiry here is whether the doctor ever obtained title to the property and the right to its possession as against the defendant.

1. Plaintiffs contend that the trial judge erred in failing to find that the defendant agreed to make the tapestry for the doctor in payment for his services. Mrs. Perriello, the doctor's secretary, testified upon direct examination for the plaintiffs, that the defendant asked Dr. Mooney if she could make him a tapestry or an evening purse or "anything like that" in the line of needlepoint in payment of the bill and Dr. Mooney said that would be all right; that she offered to make him "whatever he wanted her to make"; that the doctor offered to pay her for the materials when they discussed her making Da Vinci's "Last Supper"; and that the witness saw the doctor give the defendant "checks for materials". However, on cross-examination Mrs. Perriello stated that the original offer to make the doctor a chair cover or a needlepoint purse in payment of his bill had been made by the defendant, that the doctor rejected these offers, that the defendant made no further proposals after these rejections, that the discussion relating to the "Last Supper" was initiated by the doctor, and that it occurred almost a year after the defendant's first proposal. This witness further testified that, when the defendant received the various checks, she did not present any receipted bills or anything of that nature to establish the amounts she had paid for materials.

[ 198 Pa. Super. Page 294]

These statements of Mrs. Perriello on cross-examination tend to confirm the defendant's testimony that the transaction involving the Last Supper was separate and distinct from her previous offers to make the doctor a chair cover or a purse in payment for his services and that te checks in question were not given in payment for materials, but merely to give the defendant "something to go on". Since it does not appear from the record that the defendant paid anything for materials, over and above the original sum of $25.45, the checks, particularly the last three, also tend to confirm the defendant's testimony that this tapestry was not intended as payment for the doctor's services, and that, while the doctor may have requested the work to be done and made payments for the purpose of attempting to secure rights in the finished work, the parties never came to terms on a price. Under these circumstances, the trial judge cannot be held to have committed error in failing to find that the defendant agreed to make this tapestry in payment of the doctor's bill or for his services.

Since the plaintiffs failed to prove that the defendant agreed to make the tapestry in payment of the doctor's bill or his services, and they neither pleaded nor proved any other agreement respecting the price, the checks at best tend to establish only an agreement too indefinite to be enforced.

Even if we were to conclude that there was a contract and that a reasonable price was to be paid under the Uniform Sales Act of May 19, 1915, P.L. 543, § 9, 69 PS § 81, then in force, the plaintiffs could not prevail because they produced no evidence of what a reasonable price would be or that such a price had been tendered or paid by their decedent so as to vest him with title and right to possession of the tapestry.

2. Plaintiffs argue that title to the yarn passed to the decedent in September, 1939, when he gave her his

[ 198 Pa. Super. Page 295]

    check for $25.45, the exact amount of the cost of the materials. However, this check, like the three given later, bears only the notation: "On account for tapestry [of] [Our] Lord's Last Supper ..." It does not indicate that it was in payment for the materials. Mrs. Perriello, the plaintiffs' witness, who said she placed this notation on the check at the doctor's direction, testified that at or just before the time when this check was delivered, the defendant had brought the materials in and had not yet done any work on the tapestry. The defendant, on the other hand, testified that she bought these materials and took them to the doctor in April, 1939; the she told him what they cost, but he gave her nothing at that time; that she brought it in on May 4, 1939, after the work had been begun, and again on September 11, 1939, so that he might see the progress of the work; that the left side of the table, all six apostles, the figure of Christ and the heads of the remaining apostles had been completed on September 11th; and Dr. Mooney at that time gave her the first check stating that its purpose was to give her "something to go on". She did not request the payment and he did not say it was for the materials.

Under these circumstances we cannot say that the trial judge had no basis for concluding that title to the yarn did not pass to the decedent in September, 1939. If he believed the defendant, rather than Mrs. Perriekllo, the payment in September, 1939, did not constitute a purchase of the materials.

Furthermore, even if we were to conclude that Dr. Mooney had acquired title to the materials at that time, "[there] is no doubt that a bailee who at the request of a bailor does work or adds materials to a chattel is entitled to a possessory lien for the value of the work performed: Restatement, Security, § 61(a)." International Electronics Co. v. N.S.T. Metal Products Co., Inc., 370 Pa. 213, at page 222, 88 A.2d 40 at page

[ 198 Pa. Super. Page 29645]

(1952). Consequently, even proof of title would not entitle the plaintiffs to possession as against the defendant so long as she remains unpaid for her work.

3. The plaintiffs argue finally that the letter of the defendant to the plaintiff returning the payments is a declaration against interest which confirms the existence of the contract alleged. However, the language of the letter is not an admission of any contract such as the plaintiffs claim. The letter indicates at best that there was no agreement as to how much money should be paid to the defendant. This letter cannot be interpreted as an admission that the defendant had agreed to make this tapestry, which she states in the letter would be worth several thousands of dollars when completed, in return for services for which she had been billed only $200.

There is no right of action in replevin unless the plaintiffs have a right to immediate possession. International Electronics Co. v. N.S.T. Metal Products Co., Inc., supra. Since the court below properly concluded that the plaintiffs did not prove any such right in their decedent or in themselves, either at the time the property was seized under the writ, or at any time thereafter, their complaint in replevin was properly dismissed.


Decree affirmed.


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