On appeal from the Hudson County Court of Common Pleas.
For the defendant-appellant, McDermott, Enright & Carpenter (James D. Carpenter, Jr., of counsel).
For the plaintiff-respondent, Thomas B. Davidson.
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendant below in an action in replevin from a judgment entered upon plaintiff's verdict against defendant.
The evidence was in many essential respects in sharp conflict, but it nevertheless justified the jury in finding, if they saw fit, the following matters of fact among others:
On December 7th, 1934, the plaintiff, Peelle Company, a corporation, bought a locomotive from one Murray E. Baker, trading as Baker Machine and Supply Company, and received from Baker a bill of sale therefor. The locomotive weighed sixteen tons and runs only on rails as any other locomotive, but, at the time of the purchase, it was in need of repairs. The bill of sale specified that the price was $525 and that certain stated repairs would be made by Baker, and called for delivery at plaintiff's yard in New York City. At the time of the sale, the locomotive was in the storage warehouse of one Schoonmaker in Jersey City, but no warehouseman's receipt or other evidence of ownership thereof had ever been issued against it. Shortly after the sale, because of weather conditions, Peelle Company decided to and did leave the locomotive where it was in Schoonmaker's warehouse in order that necessary repairs might be made to it while in storage in the warehouse, and this decision was made with the full knowledge and consent of Baker, who told Schoonmaker of the sale to Peelle Company and of the repairs which they were to make. Between December 7th, 1934, and March 1st, 1935, payments were made by Peelle Company to Baker on account of the purchase price of the locomotive, the last check for $150, which was dated March 1st, 1935, stated that the sale was "in settlement of final payment $150.00 invoice 12/7/34." At such settlement $55 was allowed on account of the purchase price for repairs which Baker was to have
made, but failed to make, and which were made by Peelle Company by arrangement with Baker. Still another adjustment was an allowance of $25 by Peelle Company to Baker for storage of the locomotive for the time the repairs were being made. On March 9th, 1935, after all repairs had been made by Peelle Company, Baker, without the consent or knowledge of Peelle Company removed the locomotive from Schoonmaker's warehouse and delivered it to the defendant, Industrial Plant Corporation, at the plant of the Lincoln Terminal Company, at Kearny, New Jersey. Immediately thereafter this replevin suit was instituted by Peelle Company, against the Industrial Plant Corporation for possession of the locomotive.
In our view the only ground of appeal requiring consideration is this: "Because the trial court erroneously refused to grant a motion of the defendant for the direction of a verdict in favor of said defendant and against the plaintiff Peelle Company."
Point "I" of appellant's brief denies that the locomotive was in the possession of the plaintiff. Point "II" argues that section 43, subdivision 3 of the Sale of Goods act (4 Comp. Stat., p. 4657) does not apply because the chattel was not in the possession of a third person (in this case Schoonmaker). Lastly, appellant's point "III" claims that section 25 of the Sale of Goods act does apply on the theory that the locomotive was in the possession of Baker. It is apparent, therefore, that appellant's arguments are all based on the one question of possession and that we must determine the answer to that question.
Of course, whoever has the legal title to chattels and the right to their possession may maintain replevin ...