
    Cope v. Singer Mfg. Co.
    A contract in writing provided that a sewing machine company, in consideration of a sum named, let and demised to another party one of their sewing machines, valued at a sum named, and delivered for the term of one month, with the understanding that the machine might be kept on hire from month to month, on the payment of a certain sum on a certain day of each month, in advance, for the use and hire of the same, with a covenant not to remove the same from the premises, to pay, as above, and, in default of any such payment, to redeliver the machine to the company within a certain number of days after such payment shall have become due or to permit the agent of the company to take it; and, in the event of non-payment or removal from the premises without the consent of the company, authority was given to the company or its agents to take the machine. The company, in consideration of the premises, covenanted that, upon the prompt and full payment of the monthly hire, as above, for blank consecutive months, the blank not being filled out, to make a bill of sale for the machine. It was further stipulated that nothing therein contained should be deemed or construed to give any title or property whatever in the machine, except the full and entire payment of all the monthly payments as aforesaid, or until a bill of sale should have been executed and delivered. Held that the agreement constituted a bailment and not a sale.
    In an action of trover and conversion against a purchaser, for value without notice, from the lessee: Held that the court properly refused a request to charge that if the jury believe that the sewing machine was leased for a certain sum and the machine was left in the possession of the lessee several months after the expiration of the term, the presumption is that all the installments were paid, as far as third parties and innocent purchasers for value are concerned.
    March 12, 1889.
    Error, No. 108, July T. 1888, to C. P. Northampton Co., to review a judgment in favor of the plaintiff in an action of trover and conversion by The Singer Sewing Machine Co. against A. L. Cope, at Dec. T. 1887, No. 35. Paxson, C. J., and Green, J., absent.
    The evidence was to the following effect, at the trial before Schuyler, P. J.:
    The defendant obtained the sewing machine in controversy by purchase from Cyrus Bartholomew on March 27, 1887. The machine was delivered to Bartholomew in 1885, by the plaintiff, under the following agreement:
    “ Order No. 27711.
    
      “ Take Notice. — The person signing this agreement is earnestly requested to read and thoroughly understand its contents before signing as it will be stfictly enforced. No canvasser or other person is authorized or empowered by us to lease a machine on any terms contrary to those embodied in this agreement.
    
      “ The Singer Manufacturing Company.
    “LEASE
    “ Style of Machine, 5 D D L. & Co., No. 2041.
    “ This Memorandum Agreement Witnesseth, That the Singer Manufacturing Company, in consideration of three dollars, to them in hand paid, by Mrs. 8. Bartholomew, who resides at Gatasaugua, has this day let and demised unto the said Mrs. 8. Bartholomew, one of their sewing machines, numbered 4421402 and valued at forty-jwe dollars, and delivered to her for the term of one month from the date hereof, with the understanding that the said machine may be kept on hire from month to month, on the payment of three dollars on the 5th day of each and every month, in advance, for the use and hire of the same, and that the said................................agrees to keep the same in good order, save reasonable wear, and not to remove said machine from______________present residence as above indicated, nor suffer, under any pretense whatever, any person other than the agent of said The Singer Manufacturing Company, to have the use, custody, or control, of the same, without the written order and consent of the said Company, or its authorized agent, being first had and obtained for any of such purposes ; and to pay to the said The Singer Manufacturing Company three dollars per month, on the 5th day of each and every month hereafter, for the use and hire of the same; and in default of any such payment, to re-deliver said machine to The Singer Manufacturing Coinpany within five days after such payment shall have become due as aforesaid, or permit their agent to enter into and upon any premises where said machine may then be, and, without let or hindrance, take away the same; and, in the event of such non-payment, or of the removal of said machine from the residence above indicated, without the written consent first had and obtained as aforesaid, authority is hereby fully given to said The Singer Manufacturing Company, and to any of its authorized agents for the time being, to take, or cause to be taken, forcible possession of the said machine, hereby releasing all errors in and about the same.
    “And the said The Singer Manufacturing Company, in consideration of the premises, covenants with the said Mrs. 8. Bartholomew, that, upon the prompt and full payment of the monthly hire of three dollars for................................. consecutive months, to make a bill of sale for said machine to the said Mrs. 8. Bartholomew without any further charge or charges therefor. It is hereby mutually understood and agreed, that nothing herein contained shall be deemed or construed to give to the said Mrs. Bartholomew any title or property whatever in said machine, except the full and entire payment of all the monthly payments as aforesaid, nor until such bill of sale shall have been executed and delivered.
    “In witness whereof, the said parties have hereunto interchangeably set their hands and seals this 5th day of August, A. D. 1885.
    “ Witness at signing. “ Cyrus Bartholomew, [l. s.]”
    “ J. P. Troxell.”
    Troxell, who was agent for the company when the agreement was signed, testified that he leased the machine to Mr. Bartholomew, and when the last payment was made the rent was in arrears. The defendant claimed that all the payments had been made to the agent Troxell, and that he had failed to report them to the company. D. B. Wagner, an agent of the plaintiff, was asked this question, on cross-examination: “ Q. Have Mr. Troxell’s accounts always been found correct ?” Objected to as irrelevant. “ Offered for the purpose of discrediting Mr. Troxell’s testimony.” By the court: “The objection is sustained and exception.” [8]
    The court charged as follows:
    “ This is an action by the Singer Sewing Machine Company against A. L. Cope to recover damages for the conversion of a sewing machine. It is not disputed that this machine belonged originally to the plaintiff. The defendant alleges, however, that he became the owner of the machine by purchase from Cyrus Bartholomew, or from Mrs. Bartholomew. Whether or not that purchase amounted to anything depends upon whether Cyrus Bartholomew, or his wife, had any title to the machine which they could convey to the purchaser.
    
      “ The title which is set up as existing in Cyrus Bartholomew, or Mrs. Bartholomew — it is a little doubtful which is the party claiming ownership to the machine — is a title derived through an agreement which has been offered in evidence.
    [“ The contention between the parties is as to whether this agreement is a bill of sale or simply a lease or bailment. I say to you that it is simply a lease of the property to Mrs. Bartholomew, or to Cyrus Bartholomew — whichever it may be — -and that it conferred no title upon either Cyrus Bartholomew or Mrs. Bartholomew except upon a full compliance with the terms of the agreement. Those terms are that she should pay a rental of three dollars per month, until the price agreed upon for the sewing machine— which was forty-five dollars — should be paid.] [2]
    [“Therefore, the first question which I submit to you is whether or not Mrs. Bartholomew, or Mr. Bartholomew, did pay the full amount of forty-five dollars. This is hardly pretended on the part of the defendant. The evidence is that she did not. But I submit the question to you under the evidence.] [4]
    [“ If she did not pay the whole forty-five dollars, she had no title to the property, and she could not convey a valid title to Mr. Cope.] [5] If you find that the full purchase money was not paid, your next inquiry will be as to whether a demand was made upon the defendant to surrender the sewing machine to the plaintiff. If you find that a demand was made upon him and that he refused to surrender the sewing machine upon such demand, then, in law, that amounted to a conversion and he would be liable in damages to the plaintiff for the value of the machine.
    “ What that value is you will determine from the evidence in the case. There is nothing more in the case upon which I need to instruct you.”
    The defendant presented the following points, which were refused:
    “1. The agreement between the plaintiffs and Cyrus Bartholomew, is an agreement for the conditional sale of the sewing machine therein mentioned and not an agreement to let, and the verdict must be for the defendant.” [1]
    
      
      “ 2. If the jury believe that the sewing machine was leased to Bartholomew for a certain term, and the machine was left in his possession several months after the expiration of said term, the presumption, as to third parties and innocent purchasers for value, was that all the installments were paid, and that the machine was the property of Bartholomew, he having the possession thereof.” [8]
    
      “ 3. The contract being partly in writing and partly verbal, it is for the jury to say under all the evidence whether the parties meant a sale of the machine or a bailment.” [I]
    Yerdict and judgment for plaintiff for $10.
    The opinion of the court on a motion for a new trial, was as follows:
    
      “ Notwithstanding the light furnished by the elaborate brief of the learned and able counsel for the defendant, we are unable to distinguish the present case in principle from Enlow v. Klein, 79 Pa. 488; Rowe v. Sharp, 51 Pa. 26; Wertz v. Collender Co., 8 Cent. R. 409, and other cases of the same class. It is true that, in the two cases last mentioned, the agreement contained an express stipulation for a return of the property at the end of the bailment, a stipulation that is wanting in the agreement now before the court. But in Enlow v. Klein, supra, there was no such stipulation, and it was expressly ruled that the intention of the parties to the agreement was to be gathered from all its provisions, and that if it thus appeared that the contract was one of bailment and not of sale, the absence of a stipulation by the bailee to surrender the property was immaterial.
    “ In Enlow v. Klein mention is made of the fact, as strongly supporting the theory of a bailment, that, by the terms of the contract, the property in controversy in that case was to ‘ belong to and be managed by Enlow,’ the grantor. Upon that subject, the present agreement is equally explicit. After providing for a bill of sale ‘ upon the prompt and full payment of the monthly hire’ the agreement contains the following clause: ‘ It is hereby mutually understood and agreed that nothing herein contained shall be deemed or construed to give to the said ’ lessee ‘ any title or property whatever in said machine, except upon the full and entire payment of all the monthly payments, nor until such bill of sale shall have been executed and delivered.’ When we add to this the fact that the word ‘ lease ’ is conspicuously printed in large capitals at the head of the agreement, that the granting words are £ let and demise,’ that the word sale, or any equivalent of it, is not once used, or even hinted at, except in the connection above mentioned, there would seem to be no doubt that the contract was one of bailment. And this is all we deem it necessary to say in response to the defendant’s fourth reason for a new trial.
    
      “ The fifth reason is that£ the court erred in refusing to affirm the defendant’s second point which was as follows: If the jury believe that the sewing machine was leased to Bartholomew for a certain term, and the machine was left in his possession several months after the expiration of said term, the presumption as to third parties and innocent purchasers for value, was that all the installments were paid, and that the machine was the property of Bartholomew, he having the possession thereof.’ No authorities have been cited in support of this somewhat novel proposition, and the assertion may be ventured that none can be found. Assuming, ■as the proposition does, that the contract was one of bailment, and "the defendant being a stranger to that contract, the plaintiff owed him no duty. lie claims title through Bartholomew, and has .acquired hy purchase whatever rights Bartholomew had, but no more. The stream cannot rise higher than its source. If the plaintiff is not estopped as against Bartholomew, by its kindly indulgence in not demanding payment of the rent, surely - the ■defendant cannot claim an estoppel. This is too plain for argument.
    “The remaining reasons may be considered together. They relate to the imperfect execution of the agreement, to the blanks left unfilled, and the uncertainty of the agreement in general. It is manifest that these reasons are all based upon a misconception of "the plaintiff’s position, and of the point in controversy. The plaintiff is not suing upon the agreement, nor is the agreement necessary to the plaintiff’s recovery. The undisputed evidence is that the machine in contention belonged originally to the plaintiff. The action is trover. The machine is found in the possession of the ■defendant, who has refused to deliver it up, after proper notice. These facts constitute the whole of the plaintiff’s case, and they are undisputed. The defendant’s only answer to the case thus made out is the lease, which is his muniment of title. If this lease is to be ■criticized, the criticism would come with better effect from the other side.”
    
      The assignments of error specified, 1, 3, 7, the answers to ■defendants’ points, quoting them; 8, the rulings on the evidence, ■quoting the bill of exception; 2, 4, 5, the portions of the charge included within brackets, quoting them; and, 6, the action of the ■court in not submitting to the jury the question as to how many “ consecutive payments ” should be made before a bill of sale was to be executed, there being no price of the machine mentioned and the blajik not having been filled up in the agreement.
    
      Robt. L. Cope, with him H. C. Cope, for plaintiff in error.—
    Third parties are not bound by the words of a written contract. They may prove by parol what the real contract was. Greenleaf on Evidence, § 279 ; Com. v. Contner, 21 Pa. 272.
    The real contract was made with Mrs. Bartholomew. A married woman has power to make a contract for a sewing machine.
    The lease was not signed by the agent except as a witness. "Where the contract is wholly executory, the engagement of one may be in writing and the other in parol. Grove v. Hodges, 55 Pa. 504.
    It is for the jury to construe a contract that is made up by both written and parol evidence. Lycoming Ins. Co. v. Sailer, 67 Pa. 108; Foster v. Berg. 104 Pa. 327; Taylor on Evidence, § 44; Starkie on Ev., 786.
    In order to ascertain whether the contract is one of sale, or of bailment only, we must, where there is doubt, ascertain from the terms of the contract the intentions of the parties. Edwards v. Stranghellan, 105 Pa. 103; Enlow v. Klein, 79 Pa. 488.
    "Where the intention is to secure payment of a price agreed upon between them, the contract is, necessarily, a conditional sale and not a bailment. Forest v. Nelson, 108 Pa. 481; Heryford v. Davis, 102 U. S. 235.
    An agreement to sell and convey the full title on the payment of the last installment indicates a sale and not a bailment, although, the conveyance purports to be a lease, the amount indicating that the sum was not intended as rent. Hervey v. R. I. Locomotive Works, 93 U. S. 664.
    Brunswick v. Hoover, 95 Pa. 508, distinguishes Rowe v. Sharp, 51 Pa. 27, on the ground that the latter case contained an express stipulation for the return of the property at the end of the bailment.
    In this lease, the terms of the lease were the same as the terms of the sale. It was an agreement to sell on the condition that the price was paid. Possession was delivered under this agreement. If the installments were paid there was no legal or moral obligation to return the machine, but the lessee could demand a bill of sale; and he having possession, the title vested in him without the bill of sale. Brunswick v. Hoover, supra.
    In Dando v. Foulds, 105 Pa. 74; Wheeler & Wilson v. Heil, 115 Pa. 487; Wertz v. Collender Co., 8 Cent. R. 409, there was either a stipulation to return the goods at the end of the term, or a separate agreement to sell for a new consideration ; and this court has decided no contract to be a bailment without one of these elements.
    
      O. H. Meyers, for defendant in error.
    The authorities cited by the plaintiff in error, especially those of this state, do not support their contention. In Forest v. Nelson, and Brunswick v. Hoover, the agreement expressly recited the contract as a sale.
    Enlow v. Klein, 79 Pa. 488, was referred to in Brunswick v. Hoover, supra, in connection with the case of Sharp v. Rowe. The contract in Enlow v. Klein was held to be one of bailment. There the distinction was also sought to be made that there was no stipulation for the surrender of the property by the lessee at the termination of the term of bailment, as in the case of Rowe v. Sharp. The supreme court refer to it, but that circumstance furnished no ground to destroy the character of the agreement as a contract of bailment. This disposes of Rowe v. Sharp.
    In Wheeler & Wilson v. Heil, the contract was construed one of bailment, not on account of the provision in the lease for a return of the machine, but for other reasons, as the opinion of the court in that case will show.
    
      In Edwards’s Ap., 105 Pa. 103, Gordon, J., says : “Neither is a stipulation for the return of the property on the expiration of the time during which the bailment is operative, necessary, for, if it be not returned, the bailor may resort to his legal remedies and thus enforce the contract.”
    In all the cases which are construed as bailment, the periodical rental and the prompt payment of them for a certain period constituted the consideration for the final bill of sale.
    In our case, however, there is an express stipulation for the return of the machine.
    Irwin v. Contner has no application to the case in hand, when Cope, the defendant, claims under Bartholomew, and consequently there is a legal privity between them. See also 1 Greenl. Ev. § 211.
    The agreement was entirely in writing and the blanks could be readily supplied from the instrument itself. 2 Parsons on Contracts, 15 ; 2 Taylor’s Ev. 1561; Greenl. Ev. § 56.
    A judge may express an opinion on the evidence. Mohney v. Evans, 51 Pa. 84.
    March 12, 1889.
   Per Curiam,

Judgment affirmed.  