absolutely, the right of property will be changed although the conditions be never performed." In Welsh vs. Bell, 32 Pa., 12, the Court said, "Yet, even if the contract be for a cash sale; if the thing agreed to be sold be delivered without payment, the property passes to the vendee and is liable to levy and sale as his." In Backentoss vs. Speicher, 31 Pa., 325, it was held, "Where there is a sale of goods and delivery of possession, though the buyer intends at the time not to pay for them, and conceals his insolvency from the vendor, it is not a cheat that will avoid the sale. There must be artifice practiced, such as was intended and fitted to deceive, to constitute a cheat." The title does not pass until buyer does what he is bound to do as pay the price or fulfil other conditions precedent. Tiffany on Sale, Sec. 45, p. 89. Frech vs. Lewis, 218 Pa., 141. The vendor may reclaim his property on failure of price in a cash sale. Bowen 7's. Burke, 13 Pa., 148. The shipper when he retains the bill of lading or sends it through a bank for collection as here, is constructively in possession of the property. Holmes vs. Bank, 87 Pa., 525. Holmes vs. Bailey, 92 Pa., 57. Bache vs. Phillips, 115 Pa., 103. Richardson vs. Nathan, 167 Pa., 513. Sloan vs. Johnson, 20 Super., 643. Trover was the proper remedy. It is founded on the plaintiff's right of posThere was admittedly no wrongful session, and defendant's refusal to pay conversion of the cattle. So there could be no conversion of the proceeds of their sale and this action for trespass for conversion would not lie. The plaintiff's statement claims a wrongful conversion in selling the cattle. It does not state the amount of the proceeds of the sale and claims $1,500 as damages. There is clearly a variation between the allegata and the probata. Trover is not the proper remedy. 28 Am. & Eng. Ency. of Law, 652-3. Westgate vs. Weidman, 8 Del. Co., 460. Life Ass'n of America vs. Catlin, 37 L. J., 52. Coyle & Keller and M. G. Schaeffer for appellee. The sale was clearly a cash sale. "In the absence of a special provision or understanding to the contrary a cash sale is generally presumed to have been contemplated." 24 A. & E. Ency. of Law (2d ed.), 1095. over, or appropriation. T. & H. Practice, Vol. 2, Sec. 1559. Trout vs. Kennedy, 47 Pa., 387. The statement rightly avers a wrong. ful appropriation of the proceeds of the sale. Plaintiff need not prove non-essential allegations. Stegmaier vs. Keystone Coal Co., 225 Pa., 221. Conn vs. Huntsberger, 224 Pa., 155. The appellant does not aver that he paid over the money to Alwine before his knowledge of appellee's claim, and he has no right to keep the money or credit it on an account against Alwine. March 3, 1910. Opinion by HENDERSON, J. The appellant contends for two propositions: (1) that there was a delivery of the cattle to the purchaser as a result of which the title passed to him free from lien for the purchase money, and (2) that the sale of the cattle by the defendant at the stock yards in accordance with a local custom converted the property into money and that an action of trespass in the nature of trover cannot be sustained. That the negotiation between Alwine and the plaintiff contemplated a cash payment can hardly be doubted. The telegraphic order for the stock directed the plaintiff to draw on the purchaser for the price. Nothing was said in the correspondence about any | swered by telegraph: "Cattle billed Alother terms, and former dealings between wine made draft Middletown." The dethem in a few sales had been cash trans- fendant apparently supposed that the actions. Where a sale of chattels is made plaintiff was the owner of the cattle and without any expressed agreement as to he recognized the plaintiff's title to the the time of payment the presumption is money arising from the sale if a draft that the parties dealt on a cash basis and was drawn. The plaintiff was led by no title passes to the vendee until the this letter to believe that the defendant price has been paid, unless there has been would remit to him the money into which an actual delivery without payment: he had converted the cattle, but not havWelsh vs. Bell, 32 Pa., 12; Hand vs. ing received it he drew on the defendant Matthews, 208 Pa., 149; Frech vs. on the 27th of June. We do not find Lewis, 218 Pa., 141. And even where anything in the case to indicate that the there has been a delivery, if such delivery plaintiff was remiss in asserting his title. is made with the belief that payinent as soon as he learned that his draft was is to be made at once and the vendee protested. His remoteness from the fails to pay, the vendor may reclaim place to which the cattle were consigned his property if he take immediate necessarily delayed his efforts to recover steps to do so: Woolsey vs. Axton, his property. But we would not be justi192 Pa., 526; Frech vs. Lewis, supra. fiable in declaring him in default in this The presumption arising from the respect. If we assume that delivery to absence of evidence of any arrange- Musser was a delivery to Alwine and ment for credit and the testimony show- that Musser could rightfully sell the ing that the bill of lading was attached cattle without instructions or knowledge by the plaintiff to the draft against Al- that Alwine desired to have them sold it wine and forwarded for collection close became his duty when informed of the the door against the argument that the situation to pay the money to the plainplaintiff's contract of sale was not on tiff and his refusal so to do amounted to a cash basis. The consignment was to a conversion. The custom in existence Alwine in care of the defendant who was at the stock yards according to which the a live-stock dealer at Lancaster. Before sale was made could have no effect in the cattle or the draft arived Alwine ab- changing the title or investing the desconded, and, so far as appears in the fendant with any right which Alwine case, never knew whether the cattle ar- would not have had if he had been presrived or not. The defendant sold the ent. The action of trover is based on the cattle without instructions either from right of possession of the plaintiff against the plaintiff or Alwine, in accordance, as the defendant. The plaintiff must show he explained, with a local usage of the property in himself and an unlawful conyards at Lancaster that all cattle con- version by the defendant. If then the signed to the care of dealers are sold as plaintiff could have reclaimed his propsoon as can be advantageously done. erty when he discovered that his draft There is no evidence, however, that the was protested neither Alwine nor Musser plaintiff knew of any such usage or that could convert the property and refuse to Alwine intended this shipment of cattle deliver up the price. Such refusal would for sale at the stock yards. On the day relate back to the sale and would make of the sale the defendant wrote to the the act a wrongful conversion of the catplaintiff: "We had a load of heifers tle. The case of Alexander & Co. vs. to-day billed from J. T. Ewing, Kansas Goldstein, 13 Pa., Super. Ct., 518, is an City, to H. W. Alwine, care F. C. Mus- authority supporting the form of action. ser. We sold them for five sixty-nine On both of the questions submitted we per hundred and net amount realized is think the case is with the plaintiff. $1,100. II. Were they your cattle, and if so, let me know, and if you made draft, and we will mail you remittance. F. C. Musser." To this letter the plaintiff an The judgment is, therefore, affirmed. Common Pleas - Equity, C. P. OF LANCASTER COUNTY. Dorsheimer vs. Slaymaker. Obstruction of way by building operations. Where the owner of a building has leased the same together with a right of way over an alley between it and an adjoining property on which he is building and is digging up the alley in making his foundations, the court will not at the instance of the lessee interfere with the building operations if the owner provides a passageway for the use of the lessee and the lessee has no cause of complaint because the wooden footway erected by the owner is raised several feet higher than the old alley and part of it moved eight feet away from the building and a girder to protect the walls extends across it and passage is occasionally temporarily obstructed by the building operations. Rule for attachment. Equity Docket No. 5, page 199. passageway in common with other occupants of the building. On September 4, 1909, the plaintiff filed a bill in equity, and presented it to us, alleging these facts, and further that, in excavating the cellar preparatory to the erection of a building on the adjoining land, the plaintiff has and is digging up the alley so that there can be no egress or ingress on the same, and otherwise interfering with and restraining the plaintiff in the use of the same, and that he is about to close said alley. The prayer of the bill is, "That the said defendant, his contractors, agents and employees be restrained temporarily and, after hearing, permanently from interfering with the use of said alley, and from digging up the same and removing earth therefrom, therefrom, and from placing foundation walls or other obstructions in said alley, and from erecting a building thereon, and from making alterations and changes thereon as hereinbefore complained of." We refused to grant a preliminary injunction covering all that the plaintiff asked, but did grant one as follows: "Let preliminary injunction issue to restrain the defendant from interfer January 15, 1910. Opinion by HASS- ing with the plaintiff's use and enjoyLER, J. The defendant is the owner of two lots of ground on the west side of North Queen Street in this city. On one of them is a building, the first floor of which is rented to the plaintiff and used by him as a pool and billiard room and for bowling alleys. On the other the defendant is, and was on September 4, 1909, engaged in excavating a cellar preparatory to erecting a building. Along the side of the building, the first floor of which is rented to the plaintiff, was an alleyway extending back to Market street, passing a doorway which leads into the room now in the occupation of the plaintiff. Part of this alleyway was on land owned by the defendant, at the time the lease was made, and part on other land which he has since purchased, and upon which he is about to erect a building. The owner of each property was entitled to the use of this alley. The lease to the plaintiff provides that he shall have a right to use said alley or ment of the alley, referred to in this bill, as he is entitled to in the lease attached to this bill." In granting it we told both of the parties, both being before us when the application was made, that we did not intend the injunction to stop the defendant's building operations, but that he must provide a safe and proper passageway for the use of the plaintiff and keep the same open at all times excepting for a reasonable time when changes were necessary to be made in it because of the erection of the building. We further said that these changes might be, among other things, removing it a short distance away from the building occupied by the plaintiff so as to keep out of the way of the walls of the new, building. Alleging that the defendant has disobeyed this preliminary injunction the plaintiff presented his petition asking for an attachment against the defendant, upon which the rule, we are about to dispose of, was granted. The only purpose of a preliminary in junction is to preserve the status quo of | convenient as the one which was built the parties until such time as the merits when the preliminary injunction was of the case can be inquired into and issued. Owners of property, which inpassed upon on final hearing. At the cludes tenants, must, in the interest of time the one in this case was granted public improvement, submit at times to the defendant had excavated on and some inconveniences just as the public under part of the alley and had erected a are required to do. The public are rewooden footway protected by guard rails quired to go up a few steps at one side on and over nearly all of it to a point and down on the other to pass the lot near the rear entrance of the plaintiff's upon which the new building is being room. Since then he has extended this erected for such reasonable time as is footway back to the door of the entrance, necessary. Just so must the plaintiff, in raised it several feet above where the using his right of way, do the same thing. old one was and moved a portion of it The plaintiff further alleges that the some eight feet further to the north, new passageway prevents his cleaning which is protected by guard rails on both spittoons, etc., as he did on the old one. sides. This necessitates a few steps, up We do not understand that the rental of at the one end and down at the other, an alley right is for any purpose of this more than were in it at the time the pre- kind, but if it is, we see no reason why liminary injunction was granted. He has the defendant cannot clean his spittoons, also placed a girder across it to protect etc., on the new passageway the same as the walls of the building occupied by the he did upon the old. He further complaintiff, and those of the building ad- plains that it interferes with his getting joining the lot on the north, which neces- into and out of the cellar. The lease sitates a step up and a step down to cross does not show any such right to the use it. The entrance to the passageway is of the alley, as nothing is mentioned in it closed by a door which is not locked, of the cellar, it appearing that he only but the alleyway at the time the lease rented the first floor, and the preliminary was made was closed by a gate. At times injunction was only to restrain the defor a few hours only the guard rails on fendant from the plaintiff's use of the one side are removed to enable those em- alley as he is entitled to in the lease atployed on the new building to use a lad- tached to the bill. It therefore does not der. At times the workmen so employed cover the interference with its use in use it and have their tools lying on it, connection with the cellar. It appears and sometimes a derrick passes over it. that the right to use the cellar was given When the derrick passes over it a man to the plaintiff subsequently. If that is is on guard to warn and protect those the case, a right to the use of the alley using it. It is not lighted, but the duty for getting into and out of the cellar of lighting the alleyway was on the plain- followed such permission to use the celtiff. He has not provided lights for this lar, but even this is not granting him a one, in fact has removed them. The old right to use the alley to get into and out alleyway was one in common with the of the cellar in the lease. owner of the property on the north, and so leased by the plaintiff. Since then the defendant has become the owner of that property, and has acquired the rights of such owner, which is to use it in common with the plaintiff, that is, to have his workmen and employees pass over it, even lay their tools upon it, and, as the original owner of the property on the north in building operations might have a derrick pass over it, so has the defendant. The passageway is safe, though not as convenient as the old one, but it is as We have carefully read and examined. all the testimony and are not convinced that the defendant has disobeyed the injunction. We must, therefore, discharge. the rule to show cause why an attachment should not issue. Rule discharged. Common Pleas--L ; 1 C. P. OF LANCASTER COUNTY. Ehrhart vs. Bear. Capias Freeholder Ownership of real estate in common-Costs "Thirty shillings"-Act of March 20, 1725, I Smith, 164. A defendant who owns the undivided half of real estate which half is worth more than fifty pounds and unencumbered, and has resided in Pennsylvania for more than two years cannot be arrested on a capias. The thirty shillings costs allowable on the abatement of such writ are not to be reckoned in Sterling but in Pennsylvania currency where a shilling is worth thirteen and one-third cents making the amount allowable four dollars. August Term, 1909. No. 8. Rule to abate writ. John E. Snyder for rule. January 15, 1910. Opinion by HASSLER, J. Defendant claims exemption from arrest on a capias ad respondendum, and asks to have the writ abated and be allowed thirty shillings costs. The Act of 20 March, 1725, 1 Smith, 164, provides that any freeholder, inhabiting any part of this province, who has resided therein for the space of two years, and who has improved land to the value of 50 pounds shall not be arrested. on a capias ad respondendum, and if so arrested the court shall abate the writ and allow the defendant 30 shillings costs to be paid by the party procuring it. The depositions show that the defendant resided in Pennsylvania and has resided therein for more than two years; that on July 3, 1896 a tract of unimproved land in this city was conveyed to himself and V. Werkheiser, partners, trading as V. Werkheiser & Co.; that the partnership was dissolved by mutual consent in 1903 and its affairs closed up six years ago, and that the defendant and said V. Werkhieser continued to own a portion of said land which is shown to be worth about $900 and is unencumbered. Having been conveyed to the defendant and V. Werkhieser as partners the land was partnership property and they held title to it as tenants but when it was dissolved and its affairs closed up there was no partnership property and they held title to it as tenants in common. Judgments and mortgages against either of the individuals would be liens upon such one's interest in it and in case of death it would be distributed as real estate: Welles' account, 191 Pa., 239. And see De Bree vs. Albert, 100 Pa., 483. The defendant was therefore a free-holder (In re petition for the incorporation of Mountville Boro, 22 L. L. R., 113), and, as he owned the undivided half of the land, which half is shown to be worth more than 50 pounds, he is exempt from arrest and entitled to have the writ abated and the costs allowed. The costs to be allowed are fixed by the Act of Assembly at 30 shillings, which are not to be reckoned in Sterling but in Pennsylvania thirteen and one-third cents, making the currency where a shilling was worth amount to be allowed $4: Chapman vs. Calder, 14, Pa., 357; Lynch vs. Stevenagle, 1 Lehigh County, 6. The rule to abate the writ and allow the defendant 30 shillings costs to be paid by Hymon Ehrhart at whose instance the capias was issued is made absolute. Alexander Simpson, one of the bestknown lawyers of Jersey City, tells this story: One of his clients was on trial on the charge of robbing a store window, and when on the witness stand said: “Judge, I simply could not help taking the things, but it was not my fault; it was the fault of my right arm. Try as I might, I could not stop my arm from reaching into the window and taking the things I am charged with stealing." " All right," said the Judge, "I sentence your right arm to a year in jail." Whereupon the prisoner unscrewed his cork arm and laying it before the Judge left the Court room. 66 |