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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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accountable to. I don't know that I have any interest in this suit.
My name is on the draft, and whether I may become interested, I
cannot tell."

The plaintiff's counsel then called James Mason, who testified as
follows :

" I have seen that draft before. I saw it in the possession of
Abraham Horback. It was discounted in the Western Bank upon
the indorsement of Knox & Boggs. Mr. Horback has not paid the
whole of it ; the whole of it has not been paid. The assignees of
Knox & Boggs have yet a claim upon the draft. Horback got the
money himself from the Western Bank on Knox & Boggs's indorse-
ment. When matured it was not paid, and the bank called on
Knox & Boggs to pay it. The amount paid by them was five
thousand and seven dollars and seventeen cents. The seven dollars
and seventeen cents was for charges, which were paid by Knox &
Boggs. The draft was taken up by them on the 9th of January
1836. On the 29th of January 1836, they received from Horback
three thousand dollars ; and on the 14th of April 1836, two thou-
sand dollars ; and on the 20th of April they paid out of this money,
at Horback's request, a bill amounting to two hundred and thirteen
dollars and ninety cents. The request was made and acceded to
at the time the payment was made. Knox & Boggs have another
claim against Horback. The claim of seven dollars and seventeen
cents, charges on draft, Horback has never paid."

**S01 *The plaintiff's counsel then gave in evidence the follow

ing receipt :

" Received from D. McNair $327.65, being the balance of the
draft dated 18th April 1835, due 1st January 1836, for $5000,
drawn by me on post-master-general, and discounted in Western
Bank of Philadelphia. The balance paid over by McNair to owners
of Good Intent and Telegraph stage lines west of Bedford.

(Signed) JAMES REESIDE..

Washington City, October 29, 1835."

The plaintiff's counsel also read in evidence the affidavit of the
defendant, in action brought upon the same draft by Knox & Boggs
v. Reeside, in the following words :

"James Reeside, the defendant in this case, on oath, declares



1840.] OF PENNSYLVANIA. 50

[Horback r. Reeside.]

that he has a just defence against the whole of the said plaintiffs
demand, which is founded, as appears by the copy of the instrument
filed by the plaintiff, on this defendant's draft on the postmaster gene-
ral of the United States, chargeable, as the said draft declares, to
the drawer's account, for transporting the United States mail.
Deponent was a contractor with the post-master-general for trans-
porting the mail, and, as he believed, justly entitled to draw the
said draft against the amount due to him on the said account, as
was then usual under such contracts. The draft was accordingly
drawn the 18th day of April 1835, payable the first day of Janu-
ary 1836, and accepted by a written acceptance on the face thereof,
by the treasurer of the general post office department, provided that
the drawer shall perform his contract : which proviso or condition
was part of the acceptance. Thus accepted it was endorsed by this
deponent to Abram. Horback, who was concerned with deponent
in transporting the mail, and who had full knowledge of all the
circumstances connected with the contract, the drawing of the said
draft, and with the conditional acceptance thereof on the face, as
aforesaid. Before the said draft fell due, another post-master gene-
ral suspended payments to this deponent, on the plea, as he under-
stands, of his non-compliance with his contract ; so that not only
has payment of the said draft been refused according to the accept-
ance, but no money, credit, or allowance, whatever, has been paid,
made, or accredited to this deponent, by the post-master-general :
and moreover, this deponent's instances for settlement of his ac-
counts with the said post-master-general have been refused, and a
large sum, due to deponent for transporting the mail, is withheld
from him by the post-master-general, far beyond the amount of the
draft in question. Of said refusal to pay the draft, deponent
apprised Abram. Horback, long before it was due ; and he also
gave general notice of these circumstances to the Western Bank of
Philadelphia, at which bank the said draft was deposited for collec-
tion. Whether it was transferred the *to plaintiffs for a r*z-i
valuable consideration, this deponent is not informed ; but
he has reason to believe that they hold it as agents for either Abra-
ham Horback, or his immediate indorser. Deponent is moreover
advised, that besides the defence, the nature and character of which
are above stated, he has no other ground of legal exoneration, aris-
ing out of the incapacity of the post-master-general to give such
acceptances : and the instrument in question not being negotiable,
or a bill of exchange."

The draft and protest thereof were also given in evidence.

The jury, under the direction of the judge, found a verdict for the
plaintiff for the sum of $6178.89, subject to the opinion of the
court upon all the points of law in the case.



51 SUPREME COURT [Dec. Term,

[Horback v. Reeside.]

Mr. Badger now argued in support of the motion for a new
trial.

1. In the case of Knox v. Reeside, 2 Whart. 233, decided that
this draft was not negotiable, and the drawer not liable upon it. On
the merits it is proved that Reeside took and gave it for what it was
worth.

2. These sub-contractors (of whom Reeside was one) were joint
contractors in carrying the mail. They were partners as respected
each other, and therefore account-render should have been brought.

3. McNair was not a competent witness. He is liable to Hor-
back if the latter should fail in this suit. Besides, according to
his testimony, he holds money for some of the other sub-contractors
which he has refused to pay.

Mr. Meredith, contra.

1. This action is for money paid by the plaintiff to the defend-
ant's use. The plaintiff is not to be prevented from recovering
because the defendant passed to him in payment of his debt a paper
which turned out not to be a bill of exchange.

2. The sub-contractors might be partners among themselves ;
but as between them and Reeside it was not a partnership. They
were his agents,- and he became indebted to them for services.

3. McNair had no interest. He paid part of the money to sub-
contractors, and is liable to the others. Reeside ratified it by ac-
cepting his share. If Horback fails here, he never can go back on
McNair. He had the express consent of Reeside and Horback in
paying the money.

The opinion of the court was delivered by

SERGEANT, J. The former suit of Knox & Boggs v. Reeside,
2 Whart. 233, failed because the bill being drawn on the govern-
*521 ment *was not a negotiable instrument. This suit is free
J from that objection, being indebitatus assumpsit for money
paid to the defendant's use by the plaintiff. The facts appear to
be, that Reeside, being the contractor for carrying the mail from
Philadelphia to Wheeling, became indebted to the plaintiff and
others as sub-contractors for carrying the mail on the western part
of the route, and in order to pay them gave them the bill drawn by
himself in his own favor, and endorsed by him, saying it was good,
that he had drafts on the department, and that he considered them
as good as money ; that he received them as his pay, and gave
them as such, and that they could get it discounted at some bank.
In order to obtain this discount, the plaintiff and others endorsed
and received the money, (deducting the discount,) which was dis-
tributed among the sub-contractors present, (of whom the defend-
ant was one) and the plaintiff held himself accountable to the others.



1840.] OF PENNSYLVANIA. 53

[Ilorback e. Reeside.]

Afterwards, the draft not being paid, the plaintiff was obliged tc
refund the money to Knox & Boggs who had taken it up.

The objection to the recovery is, that the plaintiff was a partner
with the defendant, that the draft was received for the account of
all concerned, and that account render only lay, and not assumpsit.
Though the sub-contractors were partners amongst themselves as
to the sub-contract, they were not so with the defendant as to the
department, or as to the money due on the defendant's contract
with them to carry the western mail. The defendant alone made
the contract with the Post Office Department, and became the
debtor to these defendants, for carrying that portion. If he gave in
payment of his debt a security which turned out to be unavailable,
he is still liable to them ; and if the money received on such
security turned out to be no payment, and the parties receiving it
have been under the necessity of refunding it, that is so much
money paid to the defendant's use; such seems to have been the
transaction. The defendant passed to these parties in payment a
bill which turned out to be irrecoverable by them, and he is now
liable for the debt, and if the plaintiff has paid it to his creditors,
at his request, the defendant is liable for reimbursement. The
defendant, according to the evidence, gave the draft to McNair on
behalf of the sub-contractors to pay them, and the defendant him-
self received a part of it as such ; the plaintiff having done so can-
not recover it back from the sub-contractors, and is moreover liable,
so far as appears to us to those who remain unpaid, as he received
the money expressly for their use. There is, therefore, no objec-
tion to the testimony of McNair. one of the sub-contractors, on the
ground of interest. He could not be sued by Horback to recover
back this money, even though Horback should fail in this suit.
Horback has chosen to receive it and pay it over without reserva-
tion or stipulation, and must take the risk of getting it from Ree-
side.

*0n the whole, Reeside is the debtor, and justly bound r*cq
to pay, and we think this form of suit maintainable under L c
the circumstances of the case.

Rule for new trial discharged.



53 SUPREME COURT [Dec. Term,

[PHILADELPHIA, JANUARY 2 1841.]

Hoofsmith and Others against Cope.

IN ERROR.

1. To render a bill of sale of goods as against creditors, there must be an
accompanying, actual, visible, and notorious possession in the vendee.

2. Where A., living in the country, and being indebted to B. and C., mer-
chants in Philadelphia, made an assignment to them of his stock of goods in
payment of his debt ; and by an agreement between them A. was to remain
in possession as clerk to B. and C., who took a lease of the premises, and a
few days afterwards B. and 0. made a bill of sale of the goods to D., who
took possession of the goods, and, while in his possession, the goods were
levied upon and removed by the sheriff upon an execution at the suit of a
creditor of A. ;Jt was held in trespass brought by D. against the sheriff and
the execution creditor, &c., that the possession of the goods might be lawfully
taken by D., notwithstanding any dissent by A., and that evidence was not
admissible to show that no consideration passed from D. to B. and C.

3. In trespass against a sheriff and execution creditor for taking goods of
the plaintiff on an execution against another, evidence is not admissible
on the part of the defendants to prove that the goods were returned by
the sheriff to the place from which they were taken a few days afterwards.

THIS was a writ of error to the Court of Common Pleas of Mon-
roe County, to remove the record on an action of trespass vi et
armis et de bonis asportatis, $c., brought by John Cope against
Peter Hoofsmith, Joseph Teel, Charles Sprenger, and George
Murphy.

On the trial before Jessup (President), on the 3d of September
1840, it appeared that Charles Sprenger, one of the defendants,
had previously to the 13th of February 1839, kept a store in Mon-
roe county, and on that day made an assignment of all his goods,
&c., to Kreider and Hanse, merchants in Philadelphia, in payment

*541 ^ a *^ e bt ^ ue to tnem - O n tne next day an agreement
was entered into between them, by which Sprenger was to
remain in possession as clerk to Kreider and Hanse, who took a
lease of the store. On the 16th of February Kreider and Hanse,
executed a bill of sale of the goods to Cope, the plaintiif, who pro-
ceeded on the 18th of the same month to the place, and requested
Sprenger to deliver up possession, which, according to the evidence,
he hesitated doing. Cope then put a man in possession, and the
next day took an inventory of the goods, and removed part of them
to a neighboring place, when the sheriff, Teel, appeared with an
execution issued at the suit of Hoofsmith and Murphy, and took
the goods, as well those which had been removed by Cope as those
which remained in the store. This action was then brought to re-
cover damages for the taking.

The following points of evidence were ruled on the trial :

1. The defendants offered to prove that no consideration passed



1840.] OF PENNSYLVANIA. 54

[Hoofsmith v. Cope.]

from Cope to Kreider and Hanse for the transfer of the goods in
Sprenger's store.

This was objected to on the part of the plaintiff, and the court
refused to admit the evidence.

2. The defendants offered to prove that the goods were returned
by the sheriff to the place from which thej were taken in the same
condition as when taken, within ten days after they were taken.

This also was objected to and overruled.

The counsel for the defendants requested the court to charge the
jury as follows:

1. That if the jury believed that Sprenger remained in the pos-
session of the store after the 13th of February 1839, and traded in
ii as before, the bill of sale made on that day is fraudulent and void
as to creditors.

2 and 3. That a transfer of personal property, unaccompanied
by a corresponding change of possession is void as against creditors,
and that a conveyance of his goods and chattels after judgment
obtained against him, wears the appearance of fraud ; and such
conveyance is absolutely void if the possession remain in the
debtor.

4. If the jury believe that Sprenger remained in the possession
of the store after the transfer on the 13th of February 1839, such
possession makes this conveyance void and fraudulent ; and Cope
claiming under Kreider and Hanse can have no stronger or better
claim than they had.

5. If the jury are satisfied that Sprenger had the possession of
the *store after the 13th of February 1839, then the plain- r*cc
tiff cannot recover in this suit.

6. That if the jury believe Cope took possession without and
against the consent of Sprenger, then his proceedings were illegal
and void, and he cannot recover.

7. That if the jury believe Cope took possession of said goods
without and against the consent of Sprenger, then such taking,
being illegal, it cannot be taken as a delivery of the goods, and he
cannot recover.

8. That if the jury believe the transfer of these goods by Kreider
and Hanse to Cope was not for a valuable consideration, but a mere
artifice to avoid or evade their contract with Sprenger, then in
either case the plaintiff cannot recover.

9. That if the jury believe that Kreider and Hanse had not the
lawful possession of these goods, then they could not deliver posses-
sion to Cope so as to enable him to sustain this action.

10. If the jury believe that Kreider and Hanse obtained this bill
of sale on their promising to Sprenger a compensation as clerk,
&c., then Kreider and Hanse could not avoid their contract without
Sprenger's consent, and their sale to Cope, if good at all, must be



55 SUPREME COURT [Dec. Term,

[Hoofstnith v. Cope.]

taken as subject to and controlled by their agreement with Sprenger,
and then Cope cannot recover.

The learned judge charged the jury as follows :
" This is an action of trespass, to recover from the defendants
damages for taking and conveying away a quantity of store goods,
and other property, formerly belonging to Charles Sprenger, one
of the defendants. The case, as given us by the evidence, is, with
little variance, as follows: In the fall of 1838, and previously,
Sprenger had become indebted to Kreider and Hanse, of Philadel-
phia, in a considerable sum of money, which, with its interest, on
the 13th of February 1839, amounted to $1448.09. Kreider and
Hanse, desiring to secure their debt, sent one of their clerks,
Frederick C. Kreider, who is the witness in this case, to Chestnut
Hill for that purpose. He came to Sprenger's on the 13th of Feb-
ruary 1839, and obtained from Sprenger a bill of sale of the goods
claimed in this case, and which are enumerated and described in
the inventory which makes part of that instrument. On the 14th
of the same month he took a lease of the store in which the goods
were kept by Sprenger, and engaged him to serve Kreider and
Hanse, as their clerk, in the selling of the goods and closing the
business, at the rate of four hundred dollars per year. This lease,
and the agreement for the services of Sprenger, as clerk, formed
no part of the consideration of the transfer of the goods. The evi-
dence being that the indebtedness of Sprenger to Kreider and Hanse
,icrfl-i was the only consideration. These *arrangements vested
the right of this property absolutely in Kreider and Ilanse.
They, as the owners, had the right at any time to enter the store
and take possession of the goods : as between them and Sprenger,
he was only their servant, bound to comply with their directions,
and could not resist either their entry upon the premises, or taking
actual possession of all the property, contained in the bill of sale.
They had an undoubted right to sell the property, and to authorize
their vendee to reduce it to his actual possession.

" On the 16th of February they did thus sell the property to the
plaintiff (John Cope), by an assignment, endorsed on the bill of sale.
Two witnesses, Edmund H. Frismuth and Frederick C. Kreider,
testify that Cope gave to Kreider and Hanse his note for these
goods. But whether he did or not, and whether the sale was upon
any or what consideration, is not material to this case ; for there
is no one to controvert properly the regularity of that sale. It is
enough, for the purposes of this case, that Kreider and Hanse did
actually transfer to the plaintiff. If they chose to give him the
goods, his title would be as good for all the purposes of this suit as
if he had paid a full price. All that has been argued to the jury
about a fraud in the sale of Kreider arid Hanse to the plaintiff, was
clearly out of place, and ought not to have any influence upon the



1840.] OF PENNSYLVANIA. 56

[Hoofsmith r. Cope.]

jury. It is equally without foundation, either in the evidence or
the law of the case.

Having taken this assignment of the goods, the plaintiff, on the
18th of February, came in company with T. C. Kreider, to Spren-
ger's, at Chestnut Hill, for the purpose of taking the actual posses-
sion of the goods. They came to the store and requested Sprenger
to deliver up the possession. He hesitated to do it, and rather
declined. Plaintiff then put a man in the store, to keep the posses-
sion, who staid all night. In the morning of the 19th, the plain-
tiff. Kreider, Brown and Walton, went to the store, took possession,
and commenced taking an inventory of the goods, and as they
measured and marked them, put them in boxes, and removed them
to a house near by ; a room which Cope had rented for that pur-
pose Sprenger having refused to give him the key of the store.
They continued to remove the goods as fast as they could measure
them, until about two o'clock in the afternoon, when the defend-
ants, Teel and Hoofsmith, came, and Teel levied the execution of
Hoofsmith upon (as he informed them), " the whole goods, the horses,
the shingles, and all the property, in doors and out." At this
time the goods removed, according to the inventory kept by Mr.
Brown, amounted to $657.16. Sprenger delivered the key to the
sheriff, and he took possession of the store, and brought back to it
the goods, which had been previously removed by the plaintiff.
The plaintiff gave notice to the sheriff and to Hoofsmith of the
transfers made by Sprenger, and they were read or shown to him ;
but upon Hoofsmith agreeing to indemnify him, he proceeded.
After the defendant had made his levy, the plaintiff informed them,
he should hold them responsible *for the goods, and then r*c7
went away. The next day he returned to Philadelphia.

From the evidence of T. C. Kreider it appears, that on the morn-
ing of the 19th, while the plaintiff was there, and engaged in
removing the goods, Sprenger sent for Hoofsmith to come with his
horses, to go to Stroudsburg ; and on his coming he had a conver-
sation with him, when Hoofsmith left and returned again with
the sheriff in the afternoon. The execution issued by Hoofsmith
came to the sheriff's hands at half past one o'clock in the afternoon.
At that time the execution became a lien upon the personal pro-
perty of Sprenger, and under it the sheriff might justify a levy
upon the property which was then his.

The principle of law is not in this case controverted, that, in
order to give validity to the bill of sale, as against creditors, and as
against this execution, there must have been an accompanying
actual, visible and notorious possession in the plaintiff: without
such possession the transfer would have been fraudulent and void.

The question, and the material and governing question in the
case, therefore is this : Was Cope at half past one o'clock on the



57 SUPREME COURT [Dec. Term,

[Hoofsmith v. Cope.j

19th of February (the time when the lien of Hoofsmith 's execution
attached) in the actual, visible possession of the property here
claimed ? If he was, then the execution was not a lien upon it,
and affords no justification : if he was not, then there having been
no change of possession, the execution attached its lien to the pro-
perty, and the sheriff had a right to levy upon, and take it into his
actual possession.

The clerkship of Sprenger, under his agreement with Kreider
and Hanse, continued him in the visible and actual possession of
the property until Cope came ; and up to the time of Cope's com-
ing, the property was liable to execution by any creditor of Spren-
ger's. This question of change of possession from Sprenger to
Cope is a question of fact for the jury, to be settled from a view of
the whole evidence relating to the point. If the jury believe the
plaintiff entitled to recover, the value of the goods taken from his
possession by the defendants is the least measure of damages, and
the plaintiff asks for nothing beyond that.

The counsel for the defendants have proposed ten points, upon
which they desire the instruction of the court to the jury.

To the first five points the court answer : That the general prin-
ciples stated in these points are correct, and the jury will apply
them under the rules given in the charge generally, as far as they
are sustained by the evidence. (The court read the points to the
jury.)

To the 6th and 7th points the court answer : that the consent
of Sprenger was not necessary in order to give the plaintiff the
right to take possession of the goods. By his agreement Sprenger
was the hired servant of Kreider and Hanse, and his possession of
the property was their possession. Cope taking the property under
their assignment, was at liberty to turn Sprenger out of possession
*^81 * at an y ^ me ' an( ^ no subsequent assent of Sprenger to the
taking actual possession by Cope, was necessary.

To the 8th point the court answer : That there is no evidence
upon which to raise this point: nor is the consideration of the
transfer, as has been already stated, a matter of moment in this
case. There is no evidence of any conditions upon which the
assignment of Sprenger was made. It was absolute, and there is
no evidence of any arrangement in any way controlling it.

To the 9th point the court answer : That there is no evidence of
any actual possession by Kreider and Hanse, of the property ; and
of course they could not deliver that which they had not ; but under
the transfer they had the right of property and the right of pos-
session. They transferred to Cope these rights. He then had full
and lawful authority to take actual possession, and if he did so
before the right of the creditors attached, then he could recover.



1840.] OF PENNSYLVANIA. 58

[Hoofsmith . Cope.]

If he did not take actual possession (as has been fully explained)
he could not recover.

To the 10th point the court reply : That there is no evidence



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