— Does this contract constitute a bailment or a conditional sale? The Auditing Judge ruled it was a conditional sale, and we will briefly give our reasons for agreeing with him.
“Possession of personal property is the great mark of ownership; . . . and, in doubtful cases, the court, in construing the contract, has been governed” by this principle. In other words, the presumption is in favor of a sale and he who claims a bailment has the burden of proving it: Ott v. Sweatman, 166 Pa. 217.
In the latter case the words “construct and erect” were held to pass title when the materials were erected and to negative the idea of a bailment. In the instant contract the language is, “will cause to be installed upon the ‘assets’ (building, machinery and stock) a sprinkler equipment constructed in accordance with plans,” &c. “Install” and “construct” are certainly the equivalent of “construct and erect,” and are sufficient to pass title to the materials when erected. They do not imply a bailment.
Furthermore, this contract is not merely for the construction of a sprinkler system, but for insurance as well, and it has not been explained how such an agreement can be construed as a bailment.
The exceptant contends that they might have issued a writ of replevin and removed the sprinkler system before the sale under decree of this court for the payment of debts, and rather than take that action they agreed to substitute the value of the sprinkler system — alleged to be $4604.06 — and have this court determine the question. There is no such agreement of record. Furthermore, the title company has arbitrarily held up $5000 of the consideration money on the theory that these exceptants had a lien which would be removed. If they had a lien, it was discharged by the sale under decree of this court for the payment of debts, and thrown upon the fund. The title company should forthwith pay to this accountant the $5000 improperly retained. Had a writ of replevin been issued, the exceptant’s bond would have been liable for the removal of the sprinkler system, because it was the subject of a conditional sale and not a bailment.
The exceptions are dismissed and the adjudication is confirmed absolutely.