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MELLON NATIONAL BANK AND TRUST COMPANY ET AL. v. WAGNER. (06/13/62)

June 13, 1962

MELLON NATIONAL BANK AND TRUST COMPANY ET AL., APPELLANTS,
v.
WAGNER.



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.

COUNSEL

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]

OPINION BY FLOOD, J.

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 ...


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