for the next and last step is true, the inference therefrom seems very obvious that he was about to give the command to the pike-men to raise the pole, and that his intent in leaning out to one side was to ascertain the readiness of everything for that command and assure himself of the propriety of giving it, an inference far more reasonably indicated and more probable than that he did a thing he must have known to be dangerous, thoughtlessly or accidentally, or in any way except with a consciousness of his responsibility and purpose in directing the operation. In other words, the commission of the act causing the falling of the pole, as one in the line of the foreman's authority and duty of superintendency, might be inferred from those circumstances. In this connection again the Supreme Court's approval of the decision in Wagener vs. Ry. Co., supra, may be referred to as significant. There one of the material questions was whether the fireman on defendant's locomotive had used a greater than the prescribed proportion of soft in mixing it with hard coal. He had the opportunity of doing so, the work his engine was engaged in was such as to make it convenient and desirable to do so in order to get up steam quickly and effectively, and, the other facts proven being consistent with his having made use of his opportunity, an inference that he had done so was held permissible. Here, as bearing upon the question of the capacity in which the foreman was acting at the critical moment, the situation as testified to was one in which he would be expected to exercise his powers of superintendency, he was in a position to exercise them,-it was his duty to exercise them,-his action was consistent with a design on his part to exercise them, and hence, by analogy with the ruling in the case cited, it must be considered to have been permissible for the jury to infer that he did what he did in the exercise of those powers and in the performance of those duties.

It would thus appear that, assuming, as we must upon this rule, the verity of the evidence supporting the conclusion of the jury, the latter is not to be treated as the outcome of a building of one presumption upon another, (except perhaps, as pointed out in Lerch vs. Bard, 162 Pa. 307, 315, in the sense in which it is true that "all facts not mathematically demonstrable are more or less. presumptions," and in which, therefore, the principle in

voked by defendant is not to be understood), but rather as the result of a co-ordination of presumptions, mutually consistent, which arise from facts proven by evidence the jury was at liberty to accept as sufficient, and whose combined effect, as in all cases of circumstantial proof, it was for the jury to ascertain and declare. If so, there is no warrant for the entry of a judgment contrary to the verdict, and therefore,

The rule to show eause is discharged.

MAYER vs. GEISE.

Bailment-Lease-Sale

A sale and delivery of personal property with an agreement that the ownership shall remain in the vendor until the purchase money is paid enables creditors of the vendee to seize and sell the same for the payment of his debts. Whenever it appears, from the contract between the parties, that the owner of personal property has transferred the possession thereof to another, reserving to himself the naked title thereof, solely for the purpose of securing the payment of the price agreed upon between them, the contract is necessarily a conditional sale and not a bailment and while good between the parties is worthless as to creditors and bona fide purchasers from the transferee without notice.

In the Court of Common Pleas of Schuylkill County. Rule for new trial-No. 308, March Term, 1913.

H. O. Haag, J. B. Reilly and S. M. Enterline, for Rule.
I. A. Reed, Contra.

Bechtel, P. J., June 30, 1913. This case comes before us on a motion in arrest of judgment and to enter judgment for the plaintiff, n. o. v., and a motion for a new trial. Four reasons have been assigned in support of these motions, which we will consider together.

At the trial, after the plaintiff and the defendant had closed their cases the defendant asked the court to direct a verdict in favor of the defendant for the value of the personal property as testified to by Ira S. Mayer, the claimant in this case. The Court directed a verdict in favor of the defendant, but left it to the jury to ascertain the value of property. It is to these binding instructions that the plaintiff objects.

Ira S. Mayer was the owner of a certain butcher shop and the machinery necessary for the carrying on of the business, and a wagon and sled. On the 7th of December, 1911, he entered into an agreement to sell the same to Adam J. Kimmel, describing the property at length in the said agreement and receiving five hundred dollars upon the execution of the same and a note for the balance of five hundred dollars, forming the total consideration in said agreement, the said note being discounted and the proceeds going to Ira S. Mayer. This note had not been paid at the time of the trial. On the 16th of October, 1912, the same parties entered into another agreement in the nature of a lease for the identical articles described in the first agreement, and in addition thereto, three horses. On December 19, 1912, D. T. Geise had judgment entered against J. A. Kimmel in the sum of six hundred and sixty dollars on a single bill dated November 21, 1912, the debt being for cattle furnished by D. T. Geise to J. A. Kimmel, some of which, at least, if not all of said indebtedness being incurred prior to the execution of the said agreement of the 16th of October, 1912. The evidence discloses the fact that J. A. Kimmel took possession of the personal property under the first agreement hereinbefore recited. At the execution of the second agreement the possession of the property remained unchanged, and so far as the property described in the first agreement is concerned, it never left the possession of J. A. Kimmel from the time of the execution of the first agreement and its delivery thereunder until the institution of these proceedings. The three horses mentioned in the second agreement of lease were never the property of the lessor, Ira S. Mayer, and it was sought by the parties to give him possession of the same by taking them to the barn of Mayer and permitting them to sleep there one night and then returning them to the said J. A. Kimmel. The evidence also discloses the fact as testified by Mr. Mayer himself, that some time prior to the execution of the agreement of the lease October 16, 1912, Mr. Geise inquired of him relative to the financial condition of J. A. Kimmel to whom he was furnishing, or about to furnish the cattle which formed the basis of the judgment note under which execution was issued in this case. Mr. Mayer's reply does not clearly appear from his

testimony, but he does state that he did not inform Mr. Geise that he claimed the personal property in the possession of Mr. Kimmel, and that he only gave him this information after the execution issued on the note and the property had been actually levied on by the sheriff. He states that the reason he did not do this was because Mr. Geise did not ask him who owned the property. It also appears from the evidence that Mr. Kimmel had his name painted on the wagon which he used in the delivery of material in his business.

Counsel for the plaintiff claim that the lease was a bailment of this property, and as such the plaintiff can hold it against the execution creditor of the lessee. There have been many cases adjudicated in Pennsylvania upon this subject, and in some instances the line of demarkation between them, to our mind, is not very plain, but it seems to us that to a large extent each case has been decided upon its own peculiar facts. We are of opinion, under the facts in this case and the language of these agreements, that the first agreement of December 7, 1911, was a sale of the property therein described to J. A. Kimmel, and counsel for plaintiff do not seriously contend that it was not. This being so, could the parties, under the circumstances of this case, enter into a second agreement on October 16, 1912, when the rights of third parties had intervened, which should operate as a bailment to protect the plaintiff in this case at the expense of the innocent creditors of the lessee? It will be noted in this connection that the claim of the plaintiff does not include the note in its entirety, that was given as consideration of the agreement of December 7, 1911, for he claims four hundred and fifteen dollars and says that of this amount one hundred and fifty dollars is for cattle which he furnished to J. A. Kimmel. He also testifies that Kimmel was entitled to some credits, but what they were does not appear. Could the plaintiff, in order to secure the payment of a note which he received as part of the consideration of a sale of this property, the proceds of which note he had in his pocket, and which note he had not yet been called upon to pay, execute a lease for these goods to the detriment of the creditors who had given the credit on the strength of these goods and had inquired of the plaintiff relative to the financial condition of Mr. Kimmel and had

been told nothing that would put him on his guard or warn him of the facts that the plaintiff claimed the articles in question? Could the plaintiff lease to Mr. Kimmel three horses which the plaintiff never owned and never had in his possession except for the fact that they slept in his barn one night at the time of the execution of the lease. We feel that the law of Pennsylvania, equity and common justice would prevent the carrying out of a transaction such as this.

It is urged upon us, by counsel for the plaintiff, that these parties could execute this lease, and that it would be a bailment and would be binding, and they have called our attention to a number of cases, beginning with Enlow vs. Klein, in 79 Pa., 488, and ending with Byers Machine Co., vs. Risher, 41 Superior Ct., 469. The latter case is urged upon us as being conclusive of the case at bar. We do not feel that any of these cases is conclusive of this case. In the case of Byers Machine Co. vs. Risher, supra, it is true that on the 4th of April, 1903, an agreement had been supplemented on May 5, 1903, by a lease; it is equally true that the court held that this lease would hold the property in question; but it must be noted in this case. that the possession of the property was not delivered until the 12th day of June, and that in the meantime no third party's rights were affected. In the case at bar possession of the property was delivered at the time of the conditional sale, and never for one instant did that possession change, and between the execution of the two agreements the rights of Mr. Geise had attached, in addition to which the plaintiff sought to lease property that he never owned and never had in his possession except as hereinbefore set forth.

We think that this case is ruled by another line of decisions beginning with Stadfeld vs. Huntsman, 11 Norris, 53, where the Supreme Court carefully pointed out the distinction between a conditional sale and a bailment, explaining the decisions as they stood up to that time. In the Brunswick & Balke Co. vs. Hoover, et al., the agreement was much the same as it is in this case, and the court held the transaction was a conditional sale; the Supreme Court saying: "The attempt to disguise it under the cloak of a bailment was too clumsy to have the merit of being clever." They say further: "Such a contract,