754. Purchasers from Retailer or Where Buyer Is Authorized to Resell. The fact that the sale is to a retail dealer, who has no use for the property except for the purpose of resale, and the seller has knowledge of such fact, has been held insufficient to enable the buyer by a resale to a bona fide purchaser to transfer a good title as against the seller. And, in case of a sale to a retailer, the fact that the latter has the right, express or implied, to resell in the ordinary course of business is held not to enable him by a sale of his stock of goods in bulk to transfer title as against the original seller.8 On the other hand, if it is the intention of the parties that the property is to be resold by the dealer in the ordinary course of his business and before the price is paid, this will, it seems, according to the better view, enable him to transfer title to a bona fide purchaser, in the due course of trade." And undoubtedly the seller may authorize the buyer, as his agent, to resell and thereby enable him to transfer a good title free from any claim of the seller. 10 If the buyer is expressly given the right to resell, paying over to the seller the proceeds of all sales, there is no obligation on the part of a purchaser to see that the price paid by him is in fact turned over to the seller.11 It is also generally held that if a manufacturer or wholesale dealer sells on credit and delivers the property to a retail dealer for the apparent purpose of resale, a condition that the title shall remain in the seller until the price is paid. is ineffectual as against a bona fide purchaser from the retailer in the Stanton, 188 Mich. 237, 154 N. W. 48, 7. Sargent v. Metcalf, 5 Gray (Mass.) 306, 66 Am. Dec. 368 (wagons sold to a retailer). See also Oliver Ditson Co. v. Bates, 181 Mass. 455, 63 N. E. 908, 92 A. S. R. 424, 57 L.R.A. 289. Co. v. Turley, 73 Miss. 529, 19 So. 232, 55 A. S. R. 550, 32 L.R.A. 260; Armington v. Houston, 38 Vt. 448, 91 Am. Dec. 366. See also Pratt v. Burhans, 84 Mich. 487, 47 N. W. 1064, 22 A. S. R. 703. Note: 58 Am. Rep. 386. 10. Bass v. International Harvester 8. Lewis v. McCabe, 49 Conn. 141, Co. of America, 169 Ala. 154, 53 So. 44 Am. Rep. 217; Winchester Wagon 1014, 33 L.R.A. (N.S.) 374; New Work, etc., Co. v. Carman, 109 Ind. 31, Haven Wire Co. Cases, 57 Conn. 352, 9 N. E. 707, 58 Am. Rep. 382; Andre 18 Atl. 266, 5 L.R.A. 300; Clarke v. Murray, 179 Ind. 576, 101 N. E. 81, Bros. v. McNatt, 132 Ga. 610, 64 S. E. Ann. Cas. 1916A 87, L.R.A.1917B 795, 26 L.R.A. (N.S.) 585; Peasley v. 667; Burbank v. Crooker, 7 Gray Noble, 17 Idaho 686, 107 Pac. 402, (Mass.) 158, 66 Am. Dec. 470; Pratt 134 A. S. R. 270, 27 L.R.A. (N.S.) v. Burhans, 84 Mich. 487, 47 N. W. 216; Columbus Buggy Co. v. Turley, 1064, 22 A. S. R. 703. See also 73 Miss. 529, 19 So. 232, 55 A. S. R. Mishawka Woolen Mfg. Co. v. Stan- 550, 32 L.R.A. 260. ton, 188 Mich. 237, 154 N. W. 48, L.R.A.1917B 651. Notes: 134 A. S. R. 285; L.R.A. 1917B 659; Ann. Cas. 1916A 81. Notes: 134 A. S. R. 280; L.R.A. 1917B 659. 11. Clarke Bros. v. McNatt, 132 Ga. 610, 64 S. E. 795, 26 L.R.A. (N.S.) 585; Peasley v. Noble,. 17 Idalio 686, 107 Pac. 402, 134 A. S. R. 270, 27 L.R.A. (N.S.) 216. 9. Lewenberg v. Hayes, 91 Me. 104, 39 Atl. 469, 64 A. S. R. 215; Burbank v. Crooker, 7 Gray (Mass.) 158, 66 Am. Dec. 470; Columbus Buggy Note: 26 L.R.A. (N.S.) 585. due course of trade; 12 and this protection has been extended to a corporation which took the entire stock of the retailer in satisfaction of his subscription to its capital stock, as the rule should not be restricted to one who purchases in the ordinary course of retail trade.18 The power of the buyer, under an express power to resell before payment of the price, does not terminate ipso facto with his default in payments, and he may notwithstanding his default, if nothing has been done by the seller to terminate the contract or retake possession, transfer a good title to a bona fide purchaser.14 A provision, in a contract of sale to one not a dealer, that if the buyer resells or otherwise disposes of the property, the price shall immediately become payable does not confer on the buyer a right to resell so as to enable a purchas er from him to hold free of the seller's rights.15 755. Lien for Repairs.-Ordinarily a bailee of personal property has no power to subject it to a lien for repairs made thereon by a third person, as against the rights of the bailor,16 and it is generally held, in the absence of statute to the contrary, that a mechanic, who repairs a chattel at the instance of the buyer, cannot claim a lien thereon as against the seller, who reserved or retained the title until the price is paid. The mechanic's remedy in such case is by paying the seller the balance of the price due, and then subjecting the property to his lien as the property of the buyer.18 And it has been held that a court 14. Peasley v. Noble, 17 Idaho 686, 107 Pac. 402, 134 A. S. R. 270, 27 L.R.A. (N.S.) 216. 12. Bass v. International Harvester in this case recognizes that its decision Co. of America, 169 Ala. 154, 53 So. is opposed to the authorities in other 1014, 33 L.R.A. (N.S.) 374; Peasley jurisdictions including the Massachuv. Noble, 17 Idaho 686, 107 Pac. 402, setts and Michigan cases cited supra, 134 A. S. R. 270, 27 L.R.A. (N.S.) but says that it is in harmony with the 216; Winchester Wagon Works, etc., better authorities. Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 382; Andre v. Murray, 179 Ind. 576, 101 N. E. 81, Ann. Cas. 1916A 87, L.R.A.1917B 667; Lewenberg v. Hayes, 91 Me. 104, 39 Atl. 469, 64 A. S. R. 215; Columbus Buggy Co. v. Turley, 73 Miss. 529, 19 So. 232, 55 A. S. R. 550, 32 L.R.A. 260 (contract combining the elements of a conditional sale and consignment for sale), distinguished in Watts v. Ainsworth, 89 Miss. 40, 42 So. 672, 119 A. S. R. 700. Notes: 92 A. S. R. 426; 134 A. S. R. 281; Ann. Cas. 1916A 90. This view is opposed to the Massachusetts case of Sargent v. Metcalf, 5 Gray (Mass.) 306, 66 Am. Dec. 368, cited supra, this paragraph. 13. Bass v. International Harvester Co. of America, 169 Ala. 154, 53 So. 1014, 33 L.R.A. (N.S.) 374. The court 15. Watts v. Ainsworth, 89 Miss. 40, 42 So. 672, 119 A. S. R. 700, distinguishing Columbus Buggy Co. v. Turley, 73 Miss. 529, 19 So. 232, 55 A. S. R. 550, 32 L.R.A. 280. 16. See generally, BAILMENTS, vol. 3, p. 145; LIENS, vol. 17, p. 609 et seq. 17. Baughman Automobile Co. v. Emanuel, 137 aG. 354, 73 S. E. 511, 38 L.R.A.(N.S.) 97; Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299; Shaw v. Webb, 131 Tenn. 173, 174 S. W. 273, Ann. Cas. 1916A 626, L.R.A. 1915D 1141. See also Clark v. Wells, 45 Vt. 4, 12 Am. Rep. 187. Notes: 38 L.R.A. (N.S.) 97; L.R.A. 1915D 1142. 18. Baughman Automobile Co. v. of equity will not entertain jurisdiction to enjoin the seller of an automobile from asserting his title by appropriate remedy at law to recover the property, as against one seeking to subject it to a lien for labor performed and material furnished to repair the property at the instance of the buyer, although the seller knew of the labor performed and the repairs being made on the property, and that the buyer was insolvent.19 Where ordinary repairs are made to the chattel, at the instance of the buyer, the added materials become a part of the chattel by accession, and will belong, as between the repairer and the seller, to the latter as owner under the reservation of title to the chattel. 20 And where labor and material are furnished to improve the property in such a way that the seller has no choice but to accept the benefits thereof on retaking possession, such acceptance will create no liability against the seller to pay therefor. This is in pursuance of the general rule that where services are of such a nature that one has no choice but to accept them, it cannot be said that the party accepts them voluntarily; and therefore such acceptance will create no liability. This rule, subordinating the rights of the mechanic to those of the seller, has been applied where extensive repairs were made to an automobile at the instance of the buyer, who held under a contract reserving title in the seller until payment of the price. On the other hand, where a contract of conditional sale contemplates repairs to the property sold, while it is in the possession of the buyer, and before payment of the purchase price, and the terms of the contract are such as expressly or impliedly to authorize the buyer to have repairs made by a third person while title to the property remains in the seller, one making repairs under a contract with the buyer has been held to have a lien therefor, even as against the seller. In some instances the statutes have expressly given the keeper of a garage a lien on motor vehicles for charges for storage or repairs, even though the vehicle was left with him by a buyer holding under a contract by which the seller retained the title until the price is paid. It has been held, however, that a statute providing "that there shall be a lien upon any vehicle for any repairs or improvements made or fixtures or machinery furnished at the request of the owner or his agent in favor of the mechanic, contractor, founder, or machinist who Emanuel, 137 Ga. 354, 73 S. E. 511, 38 L.R.A. (N.S.) 97. 19. Baughman Automobile Co. v. Emanuel, 137 Ga. 354, 73 S. E. 511, 38 L.R.A. (N.S.) 97. 20. See infra, par. 771. 1. Baughman Automobile Co. v. Emanuel, 137 Ga. 354, 73 S. E. 511, 38 L.R.A. (N.S.) 97. See WORK AND LABOR, as to general liability to pay for services on account of the receipt of the benefits thereof. 2. Baughman Automobile Co. V. Emanuel, 137 Ga. 354, 73 S. E. 511, 38 L.R.A. (N.S.) 97. See also Shaw v. Webb, 131 Tenn. 173, 174 S. W. 273, Ann. Cas. 1916A 626, L.R.A. 1915D 1141. 3. Note: L.R.A.1915D 1142. undertakes the work," etc., did not entitle the person repairing a vehicle, such as an automobile, at the instance of a buyer holding under a conditional contract of sale, to a lien where the seller had no knowledge or notice of the making of the repairs.5 756. Lien of Innkeeper, Boarding House Keeper, Livery Stable Keeper, etc.-Ordinarily an innkeeper has a lien on the goods of his guest though they are the property of a third person. The constitutionality of a statute giving a boarding house keeper a lien on property, such as furniture or the like, brought upon the premises by a boarder, though held by him under a conditional contract of sale, as against the rights of the seller, has been upheld.' And, under a statute giving a boarding house, in general terms, a lien on all furniture, etc., brought on the premises by a boarder, it is generally held that the lien, as in case of the common law lien of an innkeeper, is superior to the rights of one who sold furniture to the boarder under a contract retaining title in the seller until the price was paid, where the keeper of the boarding house had no notice of the boarder's want of title.s On the other hand it has been held that the statutory lien of a livery stable keeper does not attach to property received from a buyer, as against the seller who retained the title until the price is paid, where such lien is given in general terms, as the lien extends only to the interest of the party for whom the services are rendered. It has also been held that the lien given by statute on an automobile for injury done by it, "whether, at the time of the injury, such automobile was driven by the owner thereof or by his chauffeur, agent, employee, servant, or any other person using the same by loan, hire, or otherwise," has no precedence over the rights of the seller of the machine who retains the title until the price is paid. 10 757. Minority View as to Creditors and Bona Fide Purchasers.In some jurisdictions, due to some extent to the statutes as well as the policy of the law against secret liens and interests, the courts have refused to uphold the validity of conditional sales as against bona fide purchasers or incumbrancers for value or subsequent levying creditors of the buyer.11 The reason for this view is that if the seller and buyer agree that the possession shall pass to the buyer, but the property remain in the seller until the purchase money is paid, such agreement as respects levying creditors of and purchasers from the buyer is fraudulent; by transferring the possession to the buyer under such a contract, a false credit is given to him and therefore in respect of third persons, as he is the apparent so is he to be considered as the real owner.12 A distinction has been made between purchasers and levying creditors, and the view taken that, though the validity of conditional contracts of sale are invalid as against bona fide purchasers from the buyer,18 the rule will not be extended so as to afford protection to levying creditors of the buyer.14 Where the rule prevails that levying creditors will be protected, it is held that the extent of the rights of a receiver appointed for the buyer depends on the nature and purpose of the suit in which he is appointed and if he is appointed on a creditors' bill he has the rights of a levying creditor and may avoid the terms of a contract of conditional sale which is invalid as to the levying creditors of the buyer although binding as between the original parties.15 But where the receiver was appointed at the instance of the mortgagee of a railroad, it has been held that though a conditional sale of rolling stock to the railroad company would have been invalid as against the levying creditors of the buyer, it is valid as against the receiver who represents the interest of the mortgagee, the mortgage itself being inferior to the rights of the seller, V. 11. Hervy v. Rhode Island Locomotive Works, 93 U. S. 664, 23 U. S. (L. ed.) 1003 (applying the law as announced in Illinois); Rock Island Plow Co. v. Reardon, 222 U. S. 354, 32 S. Ct. 164, 56 U. S. (L. ed.) 231 (law of Illinois); Murch v. Wright, 46 Ill. 487, 95 Am. Dec. 455; Martin v. Mathiot, 14 Serg. & R. (Pa.) 214, 16 Am. Dec. 491; Rose Story, 1 Pa. St. 190, 44 Am. Dec. 121; Haak v. Linderman, 64 Pa. St. 499, 3 Am. Dec. 612; Stadtfeld v. Huntsman, 92 Pa. St. 53, 37 Am. Rep. 661; Brunswick, etc., Co. v. Hoover, 95 Pa. St. 508, 40 Am. Rep. 674 note; Peek v. Heim, 127 Pa. St. 500, 17 Atl. 984, 14 A. S. R. 865; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 A. S. R. 868; Farquhar v. McAlevy, 142 Pa. St. 233, 21 Atl. 811, 24 A. S. R. 497; Schmaltz v. York Mfg. Co. |