Foreman v. . Drake

MeriiimoN, J., (after stating the case). It is unnecessary that we shall consider what effect the clause of the contract of lease set forth above, under which the plaintiff claims title to the property mentioned in the complaint, would have as between the plaintiff and the defendants, the Drakes, if the latter had obtained the title to the property subsequent to the execution of the contract, because, in our judgment, they had no such title, so far as appears, to the same, as enabled them to sell it to the plaintiff) or any other person. There was no objection to the agreement in writing between the feme defendant and the defendant Andrews, offered by the latter in evidence on the trial, except that it was not registered, and we must therefore interpret it simply with a view to determine whether or not it is such an instrument as requires registration to render it operative for all proper purposes. The important words of it, taken in their connection, do not imply a sale alsolute or conditional, of the property therein mentioned; it does not purport by its terms or nature to be a contract of sale, nor is it such in legal effect. It plainly appears from its terms and purpose to be a contract of hiring for compensation, stipulated to be paid- at the time specified. The contract is one of bailment of the class denominated locatio rei, by which the hirer gets the temporary use of the thing hired. The leading distinguishing words employed in the contract are: <lI have agreed to hire said furniture for the term of,” &c. The mere fact that it is stipulated that the defendant Andrews might put an nd to the term of hiring, if the compensation should note *315 be paid at the several times specified, or for the causes mentioned, could not change the nature of the contract, nor does such a stipulation have the effect to render- the transaction a conditional sale of the property. There is no reason why the contract of hiring may not have conditions, upon the happening of which it shall or may be terminated. Nor does the stipulation that the/erne defendant might purchase the furniture during the term of the hiring, effect the nature of the contract. We can see no reason why it should. It might be that the course or fortunes of her business would lead or enable her to do so — -it might be otherwise. Moreover, this stipulation goes to show that the parties did not contemplate a sale by contract of any kind or nature.- By the terms of the agreement the feme defendant had the right at any time during the term of hiring to purchase the property for a price, substantially the sum of money agreed to be paid as compensation for the use of the property. This seems to be a singular stipulation, and suggests a want of good faith in some way, but of itself it cannot change the nature and defeat the purpose of the contract. There may be some reason for it that we do not see. It is not suggested nor does it appear that the whole transaction was a sham and a fraud. We pass upon the instrument as it appears by its face. A contract of “ conditional sale,” and a contract of hiring, conditional in its provisions, are essentially different in their respective natures and purposes. The latter need not be in -writing, and when it is, it need not be registered. The former, to be effectual against creditors and subsequent purchasers for value, must be in writing and registered. {The Code, §1275). There is therefore error, and the appellant is entitled to a new trial. Venire de novo.