An analysis of the situation upon principle makes it evident that the real question is, Does the seller assent to give the buyer the incidents of ownership? Bradbury, 106 Mass. 422; Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Haskins v. Warren, 115 Mass. 514; Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N. W. 306; Carter, Rice & Co. v. Cream of Wheat Co., 73 Minn. 315, 76 N. W. 55; Johnson-Brinkman v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; Ferguson v. Clifford, 37 N. H. 86, 103; Leatherbury v. Connor, 54 N. J. L. 172, 23 Atl. 684, 33 Am. St. Rep. 672; Morris v. Rexford, 18 N. Y. 552; Hammett v. Linneman, 48 N. Y. 399; Adams v. Roscoe Lumber Co., 159 N. Y. 176, 53 N. E. 805; Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; McIver v. Williamson-Halsell Frasier Co., 19 Okl. 454, 92 Pac. 170; Johnson v. Iankovetz, 57 Oreg. 24, 110 Pac. 398; Frech v. Lewis, 32 Pa. St. 279, 67 Atl. 45; Victor Safe Co. v. Texas Trust Co. (Tex.), 104 S. W. 1040; Paulson v. Lyon, 26 Utah, 438, 73 Pac. 510. In Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712, the seller brought replevin for two settees, manufactured for one Coburn, and delivered to him something more than a year before. The defendant had bought the settees from Coburn some months after they had been delivered to the latter. A witness for the plaintiff testified that the settees were made and delivered and "considered cash payment." A week or ten days afterward the bill was sent. About three weeks afterward the money had not come in and a boy was sent over once or twice to collect the bill. A month after the delivery the witness saw the buyer who said he could not pay the bill that day and to come in again in about a week. The witness replied, “all right,” and went in about a week but could not get pay then. The witness then said he thought the best way was to give a lease and the buyer to pay $10 down and $10 every month thereafter; to which Coburn assented, and $20 was paid on account during the next few months. Subsequently the defendant purchased the settees. The court in banc held that if the property passed by delivery, the unrecorded conditional sale substituted for the original bargain was ineffectual to give the plaintiffs a claim against the defendant; but that if the property did not pass originally the parties merely substituted one conditional contract for another, as they might with propriety have done. The court, therefore, sustained the exceptions and directed that the case should be submitted to the jury. It seems perfectly clear, however, that the property had passed to the defendant. The sale was made on credit at the outset, and further credit allowed. From the moment of delivery the buyer used the settees as his own, and was permitted to do so. This permission was inconsistent with a conditional delivery. It was not inconsistent with a conditional sale, but such a bargain should never be implied. Moreover, if such was the nature of the transaction, the lack of record made it invalid against the defendant. Similarly in Brownville Slate Co. v. Hill, 175 Mass. 532, 56 N. E. 706, the question was held properly left to the jury whether delivery of goods was conditional, and whether the condition had been waived, and the title passed to the buyer; though if the goods had been used immediately upon their delivery it would not have been inconsistent with any condition imposed by the seller. The seller, though originally demanding an order on the defendant before he would deliver, § 731. Giving the buyer a right to use the goods as his own, indicates transfer of title. In order to answer the question whether the seller assents to transfer the title, the original bargain and what is subsequently done must both be considered. If the original bargain was for a cash sale, as distinguished from what is ordinarily called a conditional sale, that must mean that the buyer was to have neither the title nor the use and enjoyment of the goods until the price was paid. If the buyer was to have the use and enjoyment of the property, though not the title, before payment of the price, the transaction is a conditional sale, not a cash sale. Accordingly, if after bargaining for a cash sale the seller subsequently, voluntarily, delivers to the buyer the goods with the intent that the buyer may immediately use them as his own, and without insisting upon contemporaneous payment, this action is absolutely inconsistent with the original bargain. Such a delivery is not only evidence of a surrender of the condition of cash payment, it should be conclusive evidence. Even though the case warrants the conclusion that the buyer and seller agreed or understood that the seller should not part with his title until the price was paid, it is still true that the delivery and permission to the buyer to use the goods as his own are inconsistent with the theory of a cash sale. Instead, a conditional sale has been substituted and the transaction should be dealt with according to the rules governing conditional sales.87 The importance of the point is chiefly due to seems subsequently to have been satisfied with a promise to give the order in the immediate future. In Hammett v. Linneman, 48 N. Y. 399, the plaintiff sold coal to the defendant, and allowed the defendant to take the coal from the boat to his yard and mix it with other coal; but the court found that the sale was for cash, and the seller demanded payment in a short time, and the court, therefore, held, Earle, J., dissenting, that the evidence supported a verdict for the plaintiff. In Adams v. Roscoe Lumber Co., 159 N. Y. 176, 53 N. E. 805, lumber was delivered under a contract to one Mack intosh, who agreed to buy the lumber and pay for it by note at sixty days. The lumber was delivered, and as soon as delivered the bill was sent with a written statement that the terms of payment was a note payable in sixty days, together with a letter requesting that the note be sent in accordance with these terms, but the note was never delivered and the plaintiff's agent, on calling for it, failed to get it. It was held that a verdict for the plaintiff based on the theory that title had never passed should be sustained. 87 This passage is quoted and the argument admitted to be logical; but the fact that record or filing is often required in the case of conditional sales, while it is not in the case of cash sales.88 Moreover, since a conditional sale where the buyer is given power to resell the goods is often held invalid," it follows that where a buyer delivers goods under such circumstances that it is not a violation of duty to the seller for the buyer immediately to resell the goods the seller's title can rarely be upheld, either on the theory of a cash sale or a conditional sale, at least as against subpurchasers or creditors of the buyer.90 in view of earlier Kansas cases not followed in People's State Bank v. Brown, 80 Kan. 520, 103 Pac. 102, 23 L. R. A. (N. S.) 824. An instance of such a transaction is reported in Sprague Canning Co. v. Fuller, 158 Fed. 588, 86 C. C. A. 46. 8 The referee in bankruptcy in Re King Motor Car Co., 31 A. B. R. 172, 180, relying on Mishawaka Woolen Mfg. Co. v. Westveer, 191 Fed. 465, 112 C. C. A. 109, said: "My conclusions are that under the decision in the Mishawaka Case, it was, and is, the intent and purpose of the Circuit Court of Appeals of this circuit to hold any contract, whatever may be its particular wording, form or terms, providing for the sale of goods which are, or are to be, delivered to the buyer for the purposes of resale, and without any limitation as to the buyer's right to sell the same, unless such sale is made by the buyer for the seller, a contract of sale with a reservation retaining a lien as security; that such contracts are invalid as against creditors unless they are recorded and all of the provisions of the recording laws of the State of Michigan complied with. "Williston, Sales, § 329. "The doctrine contended for in the text is well expressed by Judge Wells in Upton v. Sturbridge Cotton Mills, 111 Mass. 446, 453: "A waiver is the result of a voluntary unequivocal act of delivery. To say that a party does not thereby intend a waiver is to say "The purchaser may be presumed to assent to a waiver; but he cannot be presumed, by accepting a delivery apparently unrestricted, to assent to a condition which lies in the undisclosed intent of the other party." So in Blackshear v. Burke, 74 Ala. 239, 242: "The title vested in the purchaser, and from the moment of delivery of possession the relation of buyer and seller was changed into that of debtor and creditor. This is true, even where there is a sale of goods for cash. If the seller, without demanding the purchase money, not being induced by the fraud of the buyer, delivers the goods to him unconditionally, the title vests in the buyer, and he becomes the absolute owner." In Frech v. Lewis, 218 Pa. St. 141, 67 Atl. 45, 11 L. R. A. (N. S.) 948, 120 Am. St. Rep. 864, the plaintiff furnished the defendant with carriages which were to be paid for on delivery. The carriages were used, however, and two and one-half months elapsed, during which time frequent § 732. Effect of giving a worthless check. Sometimes after a bargain for a cash sale the buyer gives in payment of the price a worthless check, and it has been held that such a false check is no payment; and that not only does no title pass to the fraudulent buyer, but that the seller may assert his title against an innocent purchaser from the buyer."1 It is submitted that such decisions are unsound. The reasoning upon which they rest is that a worthless check is no payment of demands for payment were made; then the plaintiff began an action for replevin for the carriages. The lower court permitted the case to go to the jury, who found in favor of the plaintiff. This decision was affirmed by a divided bench in the Superior Court, but was reversed by the Supreme Court, which held that there was no evidence which could justify a verdict for the plaintiff. The court said: "Our cases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expressly declared or can fairly be inferred from the circumstances attending. Possession, however, having passed, and the buyer, by the act of the seller, having been invested with the indicia of ownership, the policy of our law requires that this situation-the possession in one and the right of property in another shall continue no longer than is necessary to enable the seller to recover the goods with which he has parted. The law gives the seller the right in such case to reclaim his goods, but he must do so promptly, otherwise he will be held to have waived his right, and he can only thereafter look to the buyer for the price. . . . Except when delayed by trick or artifice, the assertion of the right to reclaim the property must follow immediately upon the buyer's default." This decision was followed in E. I. Dupont Co. v. John Shields Const. Co., 162 Fed. 198. See also Northwestern State Bank v. Silbeman, 154 Fed. 809, 83 C. C. A. 525; In re O'Callaghan, 225 Fed. 133; Kloak v. Joseph, 150 Ky. 508, 150 S. W. 651; Peabody v. Maguire, 79 Me. 572, 12 Atl. 630; Hirsch Lumber Co. v. Hubbell, 128 N. Y. S. 85, 143 N. Y. App. Div. 317. 91 National Bank of Commerce v. Chicago, etc., Ry. Co., 44 Minn. 224, 46 N. W. 342, 9 L. R. A. 263, 20 Am. St. Rep. 566; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; Johnson v. Iankovetz, 57 Or. 24, 110 Pac. 398. In these cases it was held that the seller might maintain an action for conversion against a bona fide purchaser of the goods from the original fraudulent buyer. In Hodgson v. Barrett, 33 Ohio St. 63, the seller, under similar circumstances, was allowed to reclaim the goods from a voluntary assignee in insolvency, and it is not improbable that the court would have reached the same result as against an innocent purchaser from the buyer. In People's State Bank v. Brown, 80 Kan. 520, 103 Pac. 102, 23 L. R. A. (N. S.) 824, the seller recovered against attacking creditors of the buyer. In Sims v. Bolton, 138 Ga. 73, 74 S. E. 770; Mathews v. Cowan, 59 Ill. 341, the seller was allowed to recover from the original buyer. See also Dosbaugh Nat. Bank v. Jelf, 86 Kans. 41, 119 Pac. 538. the price, and the condition has not happened upon which the property was to pass. But the real question is, Did the seller assent to transfer the ownership in the goods? and it can hardly be doubted that he did.92 If a seller should say "you must not deal with these goods, though I have put them in your hands, until I collect the check," that would show an intent not to transfer the property to the buyer. But where the goods are put into the buyer's hands without more, it can hardly be doubted that the seller means to allow him to deal with them as his own; to resell them immediately if he feels inclined. It is true that this assent to the transfer of the property to the buyer has been procured by fraud; therefore, the seller may reclaim the goods or their proceeds from the fraudulent buyer.93 But, as in other cases where the seller is induced to part with his property by fraud, the voidable title of the fraudulent buyer becomes an indefeasible title upon a bona fide purchase from the fraudulent buyer. § 733. Summary of principles governing transfer of property without performance of conditions in cash sales. The matter may be thus summarized: If the goods are delivered without any permission, express or implied, to the buyer to deal with them as his own until the price is paid, the condition that payment shall be simultaneous with the transfer of title may still be asserted; but if the seller on delivering the goods does so without restriction, so that the buyer is violating no duty if he uses the goods as his own, it is a conclusion of law that the transaction is not properly a cash sale. At most, it is what has been commonly called a conditional sale; and the natural inference is that the transaction is not even a condi White v. Garden, 10 C. B. 919; Whitehorn v. Davison, [1911] 1 K. B. 463 (C. A.). In these cases to be sure, time bills were given, but the evidence warranted the conclusion that when they were given there was no expectation or intent of paying them. The Court of Appeals reversed the decisions below (which sustained the seller's right against a bona fide pledgor) holding it immaterial even if the original acquisition of goods had been by larceny, since the seller ultimately agreed to take bills. 93 Or from any one who has no greater equities. First Nat. Bank v. Griffin, 31 Okla. 382, 120 Pac. 595; Boyd v. Bank of Mercer County, 174 Mo. App. 431, 160 S. W. 587. |