Opinion by
Morrison, J.,This is an action in trespass to recover from defendants the value of household goods stored in defendants’ warehouse. The plaintiff recovered a verdict for the value of the property and, judgment being entered thereon, defendants appealed.
On March 28, 1903, the plaintiff and her husband, Charles Klein, were the owners of certain personal property consisting of furniture and household goods. On that day they borrowed from H. L. Mackey, through the Wilkes-Barre Loan Company, the sum of $20.00, agreeing to pay the same in six monthly installments, and on the same day executed and delivered to Mackey a bill of sale for the said goods then in plaintiff’s residence at No. 45 Madison street, Wilkes-Barre. This bill of sale was absolute upon its face and was signed and sealedby the plaintiff and her husband and as between the parties it *499was sufficient to vest in Mackey the title to the goods therein described. On the same day plaintiffs also agreed in writing to hold, upon a bailment, in trust for Mackey, the goods covered by said bill of sale ; not to remove the said goods from the premises at No. 45 Madison street without first obtaining the written consent of Mackey, and if plaintiff or her husband should remove said goods in violation of said bailment contract, or in case of default by plaintiff in paying the monthly installments when due, full power was granted to Mackey to enter upon the premises where the said goods might then be, and take possession of the same, with or without process of law, and sell the same for satisfaction of said debt.
The plaintiff’s husband, Charles Klein, died soon after the execution of the said papers. The undisputed evidence shows that none of the monthly installments were ever paid, and that on May 5, 1908, the plaintiff removed the goods from No. 45 Madison street, and stored the same with the defendant's, who were warehousemen, and the plaintiff regularly paid the defendants the rent for the room in which the goods were stored. On July 15, 1903, Mackey’s alleged agent presented to the defendants the bill of sale of .March 28, 1903, and demanded the possession of the said goods and on that day the defendants delivered the goods to him, taking a receipt and agreement of indemnity therefor. The plaintiff had also stored with the defendants, with the said goods, four additional items of personal property or household goods, which were not covered by the bill of sale and bailment contract of March 28, 1903. In removing the goods covered by his bill of sale, Mackey’s alleged agent took and carried away-the said four items of personal property, and this gives rise, to one of the questions raised in this action.
■ There is no allegation in this record of any fraud, accident or mistake in the execution of the bill of sale and bailment contract of March 28, 1903, nor is it alleged that there was any inducement for the execution of the same which would authorize a reformation of the writings. As between the plaintiff and Mackey, we are unable to see why the title to the goods in question Was not vested in the vendee by the bill of sale referred to. As between vendor and vendee, title to personal property may pass under the bill or contract of sale with*500out actual delivery: 4 Am. & Eng. Ency. of Law (2d ed.), p. 558; Pringle v. Pringle, 59 Pa. 281; Pittsburg Glass Co. v. Electrical Supply, etc., Co., 2 Pa. Superior Ct. 170; Croft v. Jennings, 173 Pa. 216.
We are, therefore, of the opinion that the "written and oral testimony in the present cases required the court to instruct the jury that Mackey had the right of possession in and to all of the property covered by his bill of sale, and that he was entitled to exercise this right at the time he took the goods from the defendant’s warehouse.
The other important question in the case is the right of the defendants to recognize Mackey’s claim and to deliver the goods to him. When the goods were deposited by the plaintiff with the defendants, the relation of bailor and bailee was established between them, and prima facie, it was the duty of the defendants to take proper care of the property and to deliver it to the plaintiff or on her order. It is well settled law that the bailee cannot set up title in a third person to justify keeping the property for himself: 3 Am. & Eng. Ency. of Law (2d ed:), p. 759. But the bailee can protect himself against the bailor by showing that he has delivered possession, after demand, to the true owner: King v. Richards, 6 Wharton, 418; Floyd v. Bovard, 6 W. & S. 75. Such seems to be the settled law in New York, Massachusetts, California and several other states. But it is sufficient for us to ascertain the law upon this subject in Pennsylvania.
In King v. Richards, 6 Wharton 418, the Supreme Court, by Kennedy, J., said (p. 427) : “ But it would be repugnant to every principle of honesty to say, that after the right owner has demanded the goods of the bailee, the latter shall not be permitted, in an action brought against Mm by the bailor for the goods, to defend against his claim, by showing, clearly and conclusively, that the plaintiff acquired the possession of the goods either fraudulently, tortiously, or feloniously, without having obtained any right thereto.” See also Palmtag v. Doutrick, 59 Cal. 154; s. c. 43 Am. Rep. 245, which in its facts is much like the present case and the decision is in harmony with King v. Richards.
In our opinion, it is not important whether Mackey had an absolute title to the goods in question, or only the right to hold *501the same until the money advanced, to the plaintiff was paid. In either view he had the right of possession and this being clearly shown by the written evidence, without dispute, the court erred in submitting the case to the jury and allowing a recovery against the defendants as if they had surrendered the property to one who had no title or right of possession. It does not matter that the transaction between the plaintiff and Mackey of March 28, 1903, may seem like a hard bargain for the plaintiff. She and her husband received from Mackey $20.00 and executed the papers of that date, and agreed to pay $29.60 in six monthly installments, at the offices of the loan company, for the loan, drawing papers, etc., and they were competent to execute and' deliver the contracts which they did. The two papers of March 28, 1903, clearly entitled Mackey to the possession of the goods in question, in case the plaintiff should make default in paying the said installments, and, also, if she should remove the property from the premises in which it was to be kept.
In view of the undisputed facts and the law as we understand it, there is manifest error in the charge of the court contained in the first assignment of error and this assignment must be sustained. The. learned court also erred in refusing to affirm defendants’ first point (second assignment of error). We do not sustain the third assignment of error (second point) for the reason that it asked for a binding instruction to the effect that the plaintiff could not recover for the value of any of the goods covered by the bailment of March 28,1903. The person who appeared at the defendants’ warehouse and claimed the goods referred to in the point was not Mackey, but one claiming to act for him, and we think, there was a question of fact for the consideration of the jury as to whether or not this person represented Mackey so that the defendants were justified in delivering the goods to him.
We do not sustain the fourth, fifth, sixth and seventh assignments because the evidence is undisputed that the goods referred to in the points upon which these assignments were based, were not included in Mackey’s bill of sale. In our opinion the defendants are not excused in permitting the removal of these goods and therefore they are liable in this action for the damages caused thereby. When they permitted *502Mackey’s alleged agent to remove the goods included in the bill of sale, the duty rested upon them to hold the plaintiff’s other goods, subject to her order.
The reason we do not sustain the sixth assignment, in addition to what has been said, is that the point upon which it is based limits the right of the plaintiff to recover the fair value of the goods referred to. That is not the law as to the measure of damages. The verdict was not rendered for more than two years after the goods were taken, and if the plaintiff was not entitled to punitive damages, which is not now decided, she was at least entitled to have the jury instructed that they might allow her something in addition to the value of the goods. The rule on this question is that such allowance may not exceed legal interest, and it may be less.
The judgment is reversed with a venire facias de novo.