Ashland Block Ass'n v. Edward Thompson Co.

Hr. Justice Sears delivered the opinion of the court. The decisive question presented in this case is as to whether Buell in his transaction Avith appellee became a conditional vendee of the-books or a mere bailee. If Buell Avas a vendee, then the attempt to effect a reservation of title in the vendor, appellee, Avould be ineffectual as against the claim of appellant. For the rule is well settled that a delivery of personal property by an unpaid vendor under a contract of sale passes the title so far that an innocent purchaser from the vendee ivill be protected, irrespective of the terms of the contract of sale or the intentions of the parties. Jennings v. Gage, 13 Ill. 610; Chicago Dock Co. v. Foster, 48 Ill. 507; Young v. Bradley, 68 Ill. 553; Cold Storage Co. v. Bankers Hat. Bank, 176 Ill. 260. And the same protection is accorded to a mortgagee who acquires from the vendee in possession under like conditions. The’reason of the rule is that to suffer, without notice to the Avorld, the real ownership to be in one person and the ostensible ownership in another, gives a false credit to the latter, and in this way Avorks an injury to third persons. Chiokering v. Bastress, 130 Ill. 206. Decisions in other States which are cited can not govern. The doctrine as differently announced in some other jurisdiction and as adhered to in this State is very thoroughly compared and considered in Harkness v. Russell, 118 U. S. 663. But the doctrine that a loss of title to goods, as between parties equally innocent, should fall upon him who has voluntarily transferred to another such possession as enabled him to commit fraud, has no application to simple bailments. It is not the law that by a simple bailment, the bailor is subjected to the hazard of purchase by an innocent party from the bailee in possession. In order to make the rule as announced in the decision above cited applicable to any case, it must appear that there is something more than a mere bailment, viz., a sale. We have, therefore, only to determine whether there was here a conditional sale of the books in question by appellee to Buell, or a mere loan of them, i. e.,a bailment. We are of the opinion that it was a bailment. Doubtless a sale was contemplated and contracted in the transaction evidenced by the contract between appellee and Buell, but it was a sale of the second edition of the books, not of the books here in question. The books of the first edition, for the value of which the recovery is here had, were not sold by the terms of the written contract. The second edition was sold. It was clearly the intent of the parties to the contract that the books of the first edition should be loaned by appellee to Buell until such time as the books of the second edition were forthcoming, and then returned to appellee, the owner. And this intention is expressed by the terms of the contract. Buell never became the owner; he was merely the bailee. Bor was it contemplated by the contract of the parties that he should ever, under any condition, become the owner of these books. In each of the Illinois cases relied upon by counsel for appellant, it will be found that there was in some way, under whatever restrictions, a contemplation of a future ownership by the party put into possession. If there appeared to have been a choice permitted to Buell by the contract, by exercise of which he might elect to retain the books in question and perform conditions of payment, then the elements of a conditional sale would be presented. But here there was no such alternative. The obligation was to return the specific articles which were the subject of the bailment, viz., the books in question. Therefore this transaction can not be held to be a sale, and must be treated as a simple bailment. Chickering v. Bastress, 130 Ill. 206. There is no question here of an estoppel upon appellee, as invoked by counsel for appellant. There is no evidence that appellee was even aware of the actions of Buell by which he treated these books as his own. Nor, on the other hand, is there any evidence that appellant was aware that upon one of the pages of each volume of the books there was printed the provision that “ this book is the property of the Edward Thompson Company, and is only loaned to the subscriber to the new edition of the American and English Encyclopaedia of Law.” But the provision, whether known to appellant or not, is competent as evidence of the real nature of the transaction. For, if the transaction was in fact a bailment only, then whether that fact were known to appellant or not, the bailor is in law entitled to his goods as against appellant, to whom they were wrongfully conveyed by the bailee. We are of opinion that the transaction constituted a bailment only. Therefore the judgment of the learned trial court is right and should be affirmed.