Miles v. Sabin

JOHNS, J. It is conceded that the Plow Company shipped merchandise to the plaintiff to the value of the notes and the open account; that the merchandise was ordered and received and the notes were executed by the plaintiff under the terms and provisions of the written contract. The purpose and intent of the contract on the part of the Plow Company is very apparent, and the plaintiff as one of its former salesmen was familiar with the terms and conditions of the agreement. The contract was intended to protect the Plow Company in dealing with its customers who were entitled to a limited credit only. “It goes without saying that if there are in the contract in.consistent provisions, some of which indicate that the title was reserved and some that the title passes, the dominant thought must be ascertained and [134] given effect, regardless of any formal contrary statement”: John Deere Plow Company v. Mowry, 222 Fed. 1-5 (137 C. C. A. 539, 543). “Whether the transaction is a conditional sale depends not upon the name given it by the parties, or the form of the instrument evidencing it, but upon the ruling intention of the parties, gathered from all the language of the contract”: McDaniel v. Chiaramonte, 61 Or. 403-407 (122 Pac. 33, 35). The contract provides, “that the terms and conditions of sale apply to all goods which may be ordered”; that “nothing in this contract shall release the party from paying the agreed .price”; that the plaintiff agreed “to give his notes for all goods shipped by the Plow Company upon receipt of shipment”; and that any notes held by the Plow Company should continue to be valid obligations. The written order for the goods provides, “for which I agree to pay according to prices, terms and conditions” therein stated. All of this clearly implies that it was the purpose of the contract that the plaintiff should be and become liable as a purchaser; that the remaining provisions were designed for the protection of the Plow Company, and that for such purpose the title to the merchandise ordered and shipped should be and remain vested in the Plow Company until the purchase price was fully paid. 1, 2. While there is a sharp conflict in the authorities as to what is a bailment and what is a conditional sale, yet in this state conditional sales are held to be valid and binding obligations. This rule was first announced in the case of Singer Mfg. Co. v. Graham et al., 8 Or. 17, 23 (34 Am. Rep. 572), and is followed and approved by Landigan v. Mayer, 32 Or. 245 (51 Pac. 649, 67 Am. St. Rep. 521); Schneider v. Lee, 33 Or. 578 (17 Pac. 269); Herring-Marvin Co. v. Smith, 43 [135] Or. 315 (72 Pac. 704, 73 Pac. 340); McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33); Thienes v. Francis, 69 Or. 165 (138 Pac. 490); Francis v. Bohart, 76 Or. 1 (143 Pac. 920, 147 Pac. 755, L. R. A. 1916A, 922); and International Harvester Co. v. Bauer, 82 Or. 686 (162 Pac. 856). The main distinction between a bailment and a conditional sale is that in a conditional sale there is a promise or agreement to pay, and in a bailment there is no snch promise or agreement. “It is well settled that in a sale title passes to the buyer, while in an agency title remains in the principal although possession is transferred to the agent”: 6 C. J. 1091, § 7. “In general, provisions that the consignee shall on receipt of the goods, or at some time or times thereafter, pay for all goods received, whether sold or not, and-that he may sell to whom he will, at what prices and on what terms he will, are characteristic of a contract of sale, whatever terms may be used in describing it. If it appears that possession of property has been transferred but that a naked title has been reserved merely to secure payment of the price, the contract is a sale, although in the agreement it may be called an agency”: 6 C. J., § 1093, and authorities there cited. The case of Harkness v. Russell, 118 U. S. 663 (30 L. Ed. 285, 7 Sup. Ct. Rep. 51) is well considered and the rule is there laid down that— “in the absence of fraud an agreement for a conditional sale of personal property, accompanied by delivery, is good and valid as well against third persons as against parties to the transaction.” 3. The question? here presented is one between the .parties to the contract. The plaintiff received the goods and admits the execution of the notes pursuant [136] to the terms of the contract, and we construe the contract to he a conditional sale: McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33); International Harvester Co. v. Bauer, 82 Or. 686 (162 Pac. 856); John Deere Plow Co. v. Edgar Farmer Store Co., 154 Wis. 490 (143 N. W. 194); Ludvigh v. American Woolen Co. (D. C.), 176 Fed. 145; Dunlop v. Mercer, 156 Fed. 545 (86 C. C. A. 435); William W. Bierce, Ltd., a Corp., v. Hutchins, 205 U. S. 340 (51 L. Ed. 828, 27 Sup. Ct. Rep. 524); John Deere Plow Co. v. Mowry, 222 Fed. 1 (137 C. C. A. 539). In the case of Herring-Marvin Co. v. Smith, 43 Or. 315, 331 (72 Pac. 704, 706), this court laid down the rule that: “Where a party has agreed to purchase and pay for the property, and has or is entitled to possession until default, the seller may have choice of one of four distinct remedies, among which he may waive a return of the property, treat the contract as executed on his part, and recover from the buyer the agreed price.’ This case was cited and approved in McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33). We are of the opinion that the plaintiff is liable as a purchaser on the conditional contract of sale, and that there was a valid consideration for the promissory notes and the open account. The decree of the Circuit Court should be reversed- and the cross-complaint dismissed. It is so ordered. Reversed. McBride, C. J., and Bean and Olson, JJ., concur.