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DANIEL L. MCCARTHY v. LOUIS BANK (12/29/80)

filed: December 29, 1980.

DANIEL L. MCCARTHY, JR. AND ANNA K. S. W. MCCARTHY
v.
LOUIS BANK, BERNARD GRANOR AND ESTHER GRANOR, APPELLANTS



No. 533 Philadelphia 1980 Appeal from Order of the Court of Common Pleas of Bucks County, Civil Action at No. 1385 of March Term 1970.

COUNSEL

Edward D. Foy, Jr., Richboro, for appellants.

Justin K. McCarthy, Bethlehem, for appellees.

Spaeth, Hester and Cavanaugh, JJ.

Author: Spaeth

[ 283 Pa. Super. Page 330]

This appeal is from a judgment awarding damages for the conversion of a silo and unloader.

In January 1966 appellees purchased a farm from Frederick and Helen Stoneback. The Stonebacks took back a purchase money mortgage. In October 1966 appellees entered into a sales agreement with Penn Jersey Harvestore Systems, Inc., for a silo 20 feet in diameter and 60 feet high and a 20 foot unloader to be used with the silo. Appellees paid $100 down, and in April 1967, when the silo and unloader were installed on their farm, they made a further down payment of $1,315. The sales agreement provided that until the purchase price was paid in full, Penn Jersey would retain title to the silo and unloader, which would be regarded as movable personal property notwithstanding their affixation to the realty. In June 1967 appellees and Penn Jersey executed an installment sales contract for the

[ 283 Pa. Super. Page 331]

    unpaid balance of $13,000. Penn Jersey assigned this contract with recourse to the First Pennsylvania Banking & Trust Company, and in July financing statements reciting that First Pennsylvania was the secured party and appellees the debtors were filed with the Prothonotary of Bucks County and in Harrisburg.

Appellees defaulted on their installment payments and First Pennsylvania required Penn Jersey to pay the balance due. Although First Pennsylvania then reassigned its interest in the silo and unloader to Penn Jersey, it erroneously terminated the financing statement that it had filed in Bucks County. On April 8, 1970, Penn Jersey began an action in replevin to regain possession of the silo and unloader.

Meanwhile, appellees had defaulted on the purchase money mortgage held by the Stonebacks, and the Stonebacks had foreclosed on the farm, where the silo and the unloader were located. On the morning of April 10, 1970, the farm was sold to appellants by the sheriff of Bucks County. Before this occurred, an attorney for Penn Jersey made an oral public announcement at the sheriff's sale that the silo and unloader were claimed by Penn Jersey, and that an action in replevin had been begun two days before. Bernard Granor, one of appellants and an experienced attorney, was present at the sale and heard Penn Jersey's announcement.

Eventually appellees settled with Penn Jersey on the balance due on the purchase price of the silo and unloader, paying Penn Jersey $14,000, and on January 21, 1972, they received an assignment of all of Penn Jersey's rights, title and interest in the silo and unloader; the assignment explicitly provided that appellees could pursue the replevin action that had been initiated by Penn Jersey. By stipulation, appellants and appellees then changed the replevin action to an action in trespass for conversion of the silo ...


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