An officer of a corporation occupies such ELKIN, J. For the reasons stated in the opin-secret profits received in the management of its a fiduciary relation to it that he cannot retain ion filed to No. 114, October term, 1911, Washaffairs. ington County v. Marquis, 82 Atl. 756, the decree entered by the court below in this case is affirmed, at the cost of appellant.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

Argued before FELL, C. J., and BROWN, | equity, without previous personal notice of the MESTREZAT, POTTER, MOSCHZISKER, decree, solely on petition of the plaintiff, setand STEWART, JJ.

J. F. Reed and W. B. Cuthbertson, for appellant. Forest G. Moorhead and Edwin S. Weyand, for appellee.

ting forth that before the entry of the final decree defendant had absconded from the state to avoid compliance with the decree, that he had recently come within the jurisdiction of the court, but was in hiding, and that his intention was to again leave the commonwealth, the writ is properly quashed on motion, where, on full hearing, the plaintiff fails to establish the facts alleged in the petition.

[Ed. Note.-For other cases, see Contempt, Cent. Dig. §§ 150-161; Dec. Dig. § 55.*]

Appeal from Court of Common Pleas, Beaver County.

Action by the Douglass-Whisler Brick Company against Wm. C. Simpson. From an order quashing an attachment of defendant for contempt, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

PER CURIAM. [1] The bill in this case was for an account for profits secretly made by the defendant while an officer of the corporation plaintiff in the sale of property to it. The substance of the findings of fact by the court is that the defendant was president, treasurer, and a director of a corporation which desired to procure a new location for its business, and he and the secretary were authorized to sell its plant in order that it might locate elsewhere; that the defendant procured, in the name of another person, an option on the clay and coal in place on a tract of land for $4,000, and, without disclosing his interest, sold it to the corporation for $9,400, and appropriated the difference to his own use; that during the transaction he did not disclose the fact of his ownership to any of the directors or stockholders, but by his conduct led them to believe that he was acting for the corporation and purchasing the property from a stranger. We find no reason to doubt the correctness of the findings of fact, and from them the conclusions of law requiring the defendant to account and pay over the prof-out previous personal notice to the appellee

its followed.

[2] An officer of a corporation occupies such a fiduciary relation to it that he cannot retain secret profits received in the management of its affairs. Bird Coal & Iron Co. v. Humes, 157 Pa. 278, 27 Atl. 750, 37 Am. St. Rep. 727; Commonwealth Title Ins. & Trust Co. v. Seltzer, 227 Pa. 410, 76 Atl. 77, 136 Am. St. Rep. 896.

The decree is affirmed, at the cost of the appellant.

(233 Pa. 517)

DOUGLASS-WHISLER BRICK CO. v.

SIMPSON,

(Supreme Court of Pennsylvania. Jan. 2, 1912.)

Forest G. Moorhead and Edwin S. Weyand, for appellant. J. F. Reed and William B. Cuthbertson, for appellee.

BROWN, J. [1] A writ of attachment was issued by the court below against the appellee for the purpose of compelling him to comply with the decree which we have this day affirmed. Douglass-Whisler Brick Company v. Simpson, 82 Atl. 759. It was issued upon the petition of the appellant with

of the decree against him, and without a rule to show cause why it should not issue. The general rule is well settled that a writ of attachment for the summary arrest and imprisonment of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will afford him an opportunity of being heard. Damnatus inauditus is contrary to the general principles of judicial procedure. Cases of extraordinary emergency may, however, sometimes arise, and, when they do, a strict observance of the rule as to notice might defeat the ends of justice and lead to deplorable consequences. Such emergencies are very rare; but when they do occur, and satisfactory cause is shown, a

1. CONTEMPT (§ 55*)-CIVIL ACTIONS-PRO-Court may, in the exercise of a sound disCEEDINGS-NECESSITY FOR NOTICE.

While ordinarily a writ of attachment for the summary arrest and imprisonment of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will give him an opportunity to be heard, where cases of extraordinary emergency arise, in which a strict observance of the rule as to notice might defeat the ends of justice, a court may, in the exercise of sound discretion, dispense with notice and forthwith award an attachment.

cretion, dispense with
award an attachment.
Castle R. R. Co. v.
Co., 105 Pa. 13.

notice and forthwith New Brighton & New Pittsburg, etc., R. R.

[2] To bring itself within the exception to the general rule that required a previous personal notice to the appellee of the decree and a rule to show cause why an attachment should not issue against him for contempt, the appellant presented its petition to the court below, setting forth, inter alia, that, prior to the entry of the final 2. CONTEMPT (§ 55*)-PROCEEDINGS-QUASH- decree against him, he had absconded from ING ATTACHMENT-HEARING. Where attachment issued against a defend- the state; that he had absented himself ant to compel him to comply with a decree in from the state for the purpose of avoiding

[Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 150-161; Dec. Dig. § 55.*]

compliance with the decree; that he had recently come within the jurisdiction of the court, but was in hiding, and his intention was to again leave the commonwealth for the purpose of avoiding compliance with the said decree. There was no other averment in the petition that would have warranted the summary attachment upon which he was taken into custody by the sheriff. An answer was filed to the petition, and a motion made to vacate the order directing the attachment to issue. Upon full hearing, the court below, having been convinced that the writ had been improvidently issued, quashed it, and of this the appellant complains.

warranted a departure from the general rule as to notice before issuing an attachment. He saw and heard the appellee, and apparently believed his uncontradicted testimony. But, aside from this, in the face of the answer to the petition for the attachment, denying all of its material averments, the burden was cast upon the appellant to establish them, and, as it utterly failed to sustain them, its petition fell. Whatever its suspicions may be, a court of equity cannot recognize them as a ground calling for a summary writ for the arrest of the appellee. Appeal dismissed, at appellant's costs.

(233 Pa. 561) HUNTER CONST. CO. v. LYONS. (Supreme Court of Pennsylvania. Jan. 2, 1912.)

TRANSACTIONS INVALID-RETENTION OF POS-
SESSION BY GRANTOR.

Where there had not been an actual de

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 88 457-484; Dec. Dig. § 147.*]

2. EXECUTION (§ 194*)-CLAIMS BY THIRD PARTIES-BURDEN OF PROOF.

Where personalty levied on had belonged to the defendant in execution, and was found by the sheriff in his apparently continuing and uninterrupted possession and use, the burden is upon a claimant of proving at least constructive delivery of the property to him.

But for the averments in the petition for the attachment, to which reference has been made, the learned court below would not have directed the writ to issue, and this properly appears in the opinion quashing it. The answer of the appellee specifically de- 1. FRAUDULENT CONVEYANCES (§ 147*) nied each of these averments, and, on the hearing of the motion to quash the attachment, there rested upon the appellant the livery of possession by a debtor of personal burden to clearly establish the facts allegant, his sale of the property to the claimant property seized under execution, to the claimed in its petition as the basis of its right to was fraudulent in law and void as to the executhe attachment under a departure from the tion creditor, unless there was such a construcgeneral rule as to notice. Though given the tive delivery as would take the sale out of the rule requiring actual delivery. fullest opportunity to do so, it failed to establish one of them. It examined five witnesses, the last being the appellee, called as under cross-examination, and, according to his uncontradicted testimony, each of the material averments in the petition was untrue. Instead of having absconded to avoid compliance with the decree entered against him May 13, 1910, he was compelled to go to Florida in the preceding March on account of ill health. He returned to Beaver county in April, and remained there until the latter part of that month, waiting for the final decree, but on the last day of the month was compelled to leave again on account of tive delivery of personalty sold, the character In determining the sufficiency of construccontinued ill health, and went to California. of the property, the use to be made of it, the In October following he returned to his nature and object of the transaction, and the home in New Brighton for the purpose of possession of the parties and usages of the looking after his property interests and tak-trade must be taken into consideration. ing an appeal from the decree against him, which the records show he took on November 3, 1910-the day the writ of attachment was issued. Instead of being in hiding, he was upon the streets of New Brighton, Beaver Falls, and Pittsburgh, and his return was announced by the public press. That he was not in hiding conclusively appears from his testimony-not contradicted by the sheriff-that when that officer rang the door bell, with the attachment in his hands, he himself answered the ring and opened the

door.

The learned chancellor, under the facts as developed on the hearing, promptly and properly quashed the writ of attachment; for it clearly appeared to him that there had not existed, as set forth in the ap pellant's petition, such pressing necessity as

[Ed. Note.-For other cases, see Execution, Cent. Dig. 88 571-574; Dec. Dig. § 194.*] 3. FRAUDULENT CONVEYANCES (§ 147*)

-

TRANSACTIONS INVALID-RETENTION OF POS-
SESSION.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 88 457-484; Dec. Dig. § 147.*]

4. FRAUDULENT CONVEYANCES (§ 308*) TRANSACTIONS INVALID-RETENTION OF POSSESSION.

When constructive delivery is relied on as effecting a sufficient change of possession of personalty sold, such delivery will not be held insufficient as matter of law if the purchase was in good faith and for a valuable consideration, followed by acts intending to transfer the possession as well as the title, and the purchaser assumes such control as to reasonably indicate change of ownership.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 923-940; Dec. Dig. § 308.*]

5. FRAUDULENT CONVEYANCES (§ 308*)-REMEDIES OF PARTIES QUESTION FOR JURY.

Where a vendee of personalty has done nothing to indicate a change of ownership, the court will pronounce a mere symbolic delivery insufficient, but, where there is evidence of as

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

sumption of possession or control. it is for the jury to say whether it was bona fide or merely colorable, and whether it was sufficient to give notice to the world.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 923-940; Dec. Dig. § 308.*]

6. FRAUDULENT CONVEYANCES (§ 147*) CLAIMS BY THIRD PERSONS-DIRECTION OF VERDICT.

On a feigned issue under a sheriff's interpleader to determine title to a steam roller and other implements, where the evidence is uncontradicted that the execution defendant, an individual contractor, who was also president of the foreign corporation which was claimant and plaintiff in the interpleader, had executed a bill of sale to the claimant, that he did not deliver possession, nor remove his own name which was upon all of them, that after the bill of sale he continued to use the equipment in fulfilling an individual contract, paying rent to the claimant, and that he had given no notice of the sale, directly or indirectly, to any one in the state, the execution plaintiff is entitled to binding instructions.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 457-484; Dec. Dig. § 147.*]

Hunter, and therefore they ought not to
have been levied upon and your verdict in
that case would be for the plaintiff, the Hun-
On the other
ter Construction Company.
hand, if you do not believe what Mr. Hun-
ter says, and that those goods levied upon
were not included in the bill of sale, and
that he had not leased them, why, then, the
fact that they remained here in his posses.
sion, of course, would render any contract
that he may have made for their sale null
and void. If there was no delivery either
actual or constructive, and especially if these
goods were not included in the ones that are
named in the schedule attached to the bill
of sale, why then your verdict should be for

the defendant."

Verdict and judgment for plaintiff. Defendant appealed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John Scott Wendt, William S. Moorhead, and Donnans, Brownson & Miller, for appelAppeal from Court of Common Pleas, lant. Norman E. Clark and Winfield McWashington County. Ilvaine, for appellee.

Feigned issue under sheriff's interpleader between the Hunter Construction Company and Robert Lyons, receiver of the Cosmopolitan National Bank of Pittsburg. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

BROWN, J. This is a feigned issue under the sheriff's interpleader act to determine the title to certain personal property seized on an execution in which the appellant was the plaintiff and N. C. Hunter, the defendant.

The facts are stated in the opinion of the The facts in the case are undisputed, and Supreme Court.

nothing could be clearer from a mere recital of them than that heed must be given to appellant's complaint of the refusal of the trial judge, to direct a verdict in his favor.

The court charged in part as follows: "Now, gentlemen, the defendant has asked us to instruct you as a matter of law that these facts that have been testified to are For 15 or 20 years prior to 1910, N. C. Hunnot sufficient to show a delivery. We refuse ter had been a contractor engaged in conto instruct you in that way, reserving, how-structing railroads and highways in the ever, the question of law so that we can consider it hereafter, if we see on argument that we are wrong, and reserving the right to enter judgment in favor of the defendant | notwithstanding a verdict in favor of the plaintiff, if you should so find. But for the present we instruct you that it will be for you to say whether or not this explanation of why the goods were not shipped and delivered that is, why a manual delivery was not made of them by Mr. Hunter to the New York corporation in New York-whether that has or not been reasonably explained by showing that he needed these goods to finish his contracts here, and while he was using the tools here recognized the title of the vendee by contracting and actually paying for their use at so much a month while he had them. Now, Mr. Hunter has testified to what was done, and that question I say turns upon his credibility. If you believe what he states is true, then it appears to the court that there would be no actual or legal fraud introversy, for which there was issued to him the matter, and these tools would appear to be the property of the Hunter Construction Company and not the property of Mr. N. C.

county of Washington, this state. In August and September, 1908, he borrowed money from the Cosmopolitan National Bank of Pittsburg, and in July, 1910, Robert Lyons, the appellant, who had been appointed its receiver, instituted suit to collect the indebtedness due by Hunter from 1908, and, having obtained a judgment against him, issued an execution, by virtue of which the sheriff of Washington county seized a steam roller, stone crusher, dump wagons, etc., constituting an equipment then being used by Hunter in the construction of a highway near Eighty-Four, in said county. About November 17, 1909, there was organized under the laws of the state of New York a corporation known as the Hunter Construction Company, and on the 24th of that month Hunter, according to his testimony as a witness for the plaintiff, executed and delivered to that corporation a bill of sale of all his roadmaking equipment, including the property in con

the entire capital stock of the corporation. At the same time he assigned to it a number of contracts, not including, however, the one

ed to transfer the possession as well as the title, and the vendee assumes such control of the property as to reasonably indicate a change of ownership (Crawford v. Davis, 99 Pa. 576; Garretson v. Hackenberg, 144 Pa. 107, 22 Atl. 875).

for the construction of the road near Eighty- | 128 Pa. 524, 18 Atl. 405, 15 Am. St. Rep. 692; Four, on which the machinery levied upon McCullough v. Willey, 200 Pa. 168, 49 Atl. was being used. Some of the property in- 944; White v. Gunn, 205 Pa. 229, 54 Atl. cluded in the bill of sale was shipped to the 901); and, when constructive delivery of posHunter Construction Company in New York, session is relied upon as sufficient under the but none used in building the highway at rule requiring change of possession from the Eighty-Four was shipped to it there or else- vendor to the vendee, such delivery will not where. It remained in Washington county, be held insufficient as a matter of law, if the in the possession of Hunter, until it was purchase was in good faith and for a valulevied upon. It had continued in his posses-able consideration, followed by acts intendsion after the bill of sale was executed and delivered, just as before, and at the time it was seized was being used by Hunter in carrying out a contract in which he was individually alone interested. The Hunter Construction Company was never registered in this state, and never did work of any kind here. On the trial it was admitted that Hunter had not delivered to his construction company actual possession of the property taken in execution by the sheriff. He further testified that during the spring of 1910 he, as president of the Hunter Construction Company, had entered into an oral agreement with himself, as an individual, whereby he had leased to himself the roadmaking equipment which was being used by him in fulfilling his individual contract, and paid rent to the company for the use of it at the rate of two per cent. a month on its appraised value. When he delivered the bill of sale to the Hunter Construction Company, the road rollers, sprinklers, dump wagons, etc., were marked with the name "N. C. Hunter." There was no change in this marking, and the name of N. C. Hunter was still on these articles at the time of the levy. The name of the Hunter Construction Company did not appear on any of the equipment at EightyFour.

[1] After the admission by the appellee that there had not been an actual delivery of possession to it of the personal property seized by the sheriff as the property of N. C. Hunter, his sale to the company was fraudulent in law, if not in fact, and therefore void as to the execution creditor to whom he was indebted at the time of the sale to the company, unless there was such a constructive delivery to the vendee as would take the sale out of the rule requiring actual delivery.

[2] The property admittedly belonged to N. C. Hunter prior to his sale of it to the construction company, and, having been found by the sheriff in his apparently continued and uninterrupted possession and use, the burden was upon the appellee of proving by sufficient evidence the constructive delivery to it upon which it stands to sustain its title. Barr v. Reitz, 53 Pa. 256.

[3, 4] In passing upon the question of the sufficiency of constructive delivery in any case, the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of trade or business must be taken into consideration (Renninger v. Spatz,

[5] "In such cases it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient; but, where there is evidence of such assumption of control, it is for the jury to say whether it was bona fide or merely colorable, and whether it was enough to give notice to the world. The question in such case is, Did the vendee do all that he might reasonably be expected to do in the case of a real and honest sale?" McKibbin v. Martin, 64 Pa. 352, 3 Am. Rep. 588.

[6] What was done by the appellee, as Hunter's vendee, to indicate to his creditors or to any one else that it had assumed control of the personal property found by the sheriff in the continued possession of Hunter, its vendor? It was not even shown that any one outside of Hunter, Hibbard, his attorney, and his construction company ever knew he had made a sale to it; and it cannot be pretended that the company ever did anything in this state or out of it to indicate to any one that it had assumed control of the property which is the subject of this interpleader. Though the rigor of the rule as laid down in Clow v. Woods, 5 Serg. & R. 275, 9 Am. Dec. 346, has been somewhat relaxed, no one of the innumerable cases which followed and reaffirmed it-aptly termed by Mr. Justice Sharswood to be "a beadroll of subsequent decisions, which it would be a mere affectation of learning to cite"-justified the court below in permitting the jury to find, under the undisputed facts in the case, that there had been a constructive delivery of the property by Hunter. If, as was said in McKibbin v. Martin, it is for a jury to say whether the sale was bona fide or merely colorable, and whether it was enough to give notice to the world, a jury must so find upon evidence, and here there was not even a scintilla that anything had ever been said or done by Hunter in his individual capacity, or as president of the construction company, or by that company through any one else, to give notice of the sale, directly or indirectly, to any one within this state. It was therefore