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identical thing is not to be returned, and the receiver may deliver some other thing instead, the property is transferred, and the transaction is in effect a sale, or, more accurately, an exchange.35

Same-Grain in Elevator.

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A difficult case arises where grain is deposited in an elevator or warehouse upon an understanding, express or implied, that the warehouseman may mix it with other grain of his own or of third persons, and draw from the mass to meet the orders of the depositors. Some cases have taken the view that, because the identical grain was not to be returned, the property in it is transferred, and that the transaction is in effect a sale. According to the prevailing view, however, the transaction is at bailment; the different depositors owning the entire mass as tenants in common, and the interest of each in the mass, as it is increased or diminished by additions or withdrawals by the warehouseman and other depositors, being measured by the proportionate amount of his deposit. The deposit may, of course, be on such terms as to effect a transfer of the property,

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cent., it was a bailment of the leather. Schenck v. Saunders, 13 Gray (Mass.) 37. And see Hyde v. Cookson, 21 Barb. (N. Y.) 92. But see Jenkins v. Eichelberger, 4 Watts (Pa.) 121, 28 Am. Dec. 691; Prichett v. Cook, 62 Pa. 193; Butterfield v. Lathrop, 71 Pa. 223.

84 Singer Mfg. Co. v. Ellington, 103 Ill. App. 517; Scott Mining & Smelting Co. v. Shultz, 67 Kan. 605, 73 Pac. 903; Potter v. Mill Co., 101 Mo. App. 581, 73 S. W. 1005. Cf. Turnbow v. Beckstead, 25 Utah, 468, 71 Pac. 1062.

35 Post, p. 12.

36 See 6 Am. Law Rev. 450.

37 Lawler v. Nichol, 12 Manitoba R. 224. See, also, South Australia Ins. Co. v. Randall, L. R. 3 P. C. App. 101; Rahilly v. Wilson, Fed. Cas. No. 11,532, 3 Dill. (U. S.) 420; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623 (cf. James v. Plank, 48 Ohio St. 255, 26 N. E. 1107).

The latter cases are perhaps distinguishable on the ground that the warehouseman had the right to sell and to pay in money or grain. Post, p. 8.

38 Rice v. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 34, 63 Am. St. Rep. 359; Ardinger v. Wright, 38 Ill. App. 98; Cushing v. Breed, 14 Allen (Mass.) 376, 92 Am. Dec. 777; Erwin v. Clark, 13 Mich. 10; Young v. Miles, 20 Wis. 615, 23 Wis. 643; Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706;

as where the agreement is simply that the warehouseman shall pay for the grain at the market price, on demand,3° or where he receives the option to dispose of the grain at his pleasure and to pay in money, instead of returning grain from the mass.40 On the other hand, the transaction may be a bailment, notwithstanding that the warehouseman has an option to buy when the receipt is presented, instead of returning grain, so long as it is contemplated that the option can be exercised only when the receipt is presented, and not that he may treat the grain as his own without first paying for it.11 Same-Bailment with Option to Buy.

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A sale and a contract to sell are to be distinguished from a bailment with an option on the part of the bailee to buy the goods; for, if the agreement be that the receiver of the goods is to keep or have the use of them for a certain time, and that he may become owner upon full payment of the rent or of an agreed sum, the transaction is not a sale, because it is not the intention that the property shall pass until the payment is made,42 nor is it a contract to sell because the receiver is not

Nelson v. Brown, 53 Iowa, 555, 5 N. W. 719; Odell v. Leyda, 46 Ohio St. 244, 20 N. E. 472; McBee v. Ceasar, 15 Or. 62, 13 Pac. 652.

In some states it is declared by statute that the transaction is a bailment. Hall v. Pillsbury, 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Rep. 209; State v. Cowdery, 79 Minn. 94, 81 N. W. 750, 48 L. R. A. 92. And see Snydacker v. Stubblefield, 177 Ill, 506, 52 N. E. 742. See proposed Warehouse Receipts Act, § 23; post, note 172. 39 Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; Woodward v. Boone, 126 Ind. 122, 25 N. E. 812; Hagey v. Schroeder, 30 Ind. App. 151, 65 N. E. 598; Jones v. Kemp, 49 Mich. 9, 12 N. W. 890; Lonergan v. Stewart, 55 Ill. 45; Richardson v. Olmstead, 74 Ill. 213; Weiland v. Sunwall, 63 Minn. 320, 65 N. W. 628; Reherd's Adm'r v. Clem, 86 Va. 374, 10 S. E. 504; State v. Stockman, 30 Or. 36, 46 Pac. 851.

40 Lyon v. Lenon, 106 Ind. 567, 7 N. E. 311; Cloke v. Shafroth, 137 Ill. 393, 27 N. E. 702; Barnes v. McCrea, 75 Iowa, 267, 39 N. W. 392, 9 Am. St. Rep. 473.

41 Nelson v. Brown, 44 Iowa, 455; 421, 12 N. W. 637, 42 Am. Rep. 474; 60 N. W. 1087.

Ledyard v. Hibbard, 48 Mich.
State v. Rieger, 59 Minn. 151,

42 Rowe v. Sharp, 51 Pa. 26; Enlow v. Klein, 79 Pa. 488; Brown v. Billington, 163 Pa. 76, 29 Atl. 904, 43 Am. St. Rep. 780; Goss PrintingPress Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031; Sargent v. Gile, 8 N. H. 325; Hart v. Carpenter, 24 Conn. 427; Frye v. Burdick, 67 Me.

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bound to buy. Such transactions are to be distinguished from so-called "conditional sales," where there is a contract to sell, accompanied by delivery of the goods to the buyer, with a reservation of the property in the goods in the seller to secure the payment of the price, which the buyer is bound to pay.**

Same-Pledge.

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A pledge is a bailment to secure the payment of a debt or the performance of an engagement, and the general property remains in the pledgor, who can transfer the general property to a third person, subject to the special property of the pledgee.*7 If the goods are delivered by way of security, the transaction is a pledge, and not a sale. A debtor may, indeed, transfer the property in goods to his creditors in payment of a debt; 9 but although the transaction is in the form of a sale, and is evidenced by a written instrument or transfer, the debtor may show that the transaction was intended by the parties as a pledge.50

Same-Chattel Mortgage.

A chattel mortgage differs from a pledge in that by it the general property in the mortgaged goods is transferred to the

408; Braun v. Rendering Co., 92 Wis. 245, 66 N. W. 196; Wiggins v. Tumlin, 96 Ga. 753, 23 S. E. 75. And see Crosby v. Canal Co., 119 N. Y. 334, 23 N. E. 736; ante, p. 2; post, p. 130.

43 Helby v. Matthews (1895) App. Cas. 471. Cf. Lee v. Butler (1893) 2 Q. B. 318.

There may be a bailment with the obligation to buy if a condition happens; for example, in case the thing be damaged. Bianchi v. Nash, 1 Mees. & W. 545.

44 Post, p. 134.

45 Hale, Bailm. 102.

46 Halliday v. Holgate, L. R. 3 Exch. 299; Donald v. Suckling, L. R. 1 Q. B. 585; Harper v. Godsell, L. R. 5 Q. B. 424; Cortelyou v. Lansing, 2 Caines, Cas. (N. Y.) 200.

47 Franklin v. Neate, 13 Mees. & W. 481; Jenkyns v. Brown, 14 Q. B. 496; Whitaker v. Sumner, 20 Pick. (Mass.) 399.

48 Kimball v. Hildreth, 8 Allen (Mass.) 167; Houser v. Kemp, 3 Pa. 208; Beidler v. Crane (Ill.) 19 N. E. 714; Irwin v. McDowell (Cal.) 34 Pac. 708.

49 Reeves v. Sebern, 16 Iowa, 234, 85 Am. Dec. 513; Travers v. Leopold, 124 Ill. 431, 16 N. E. 902.

50 Walker v. Staples, 5 Allen (Mass.) 34; Newton v. Fay, 10 Allen

mortgagee. It differs from a sale in that the transfer is defeasible upon performance by the mortgagor of the conditions of the mortgage."

Same-Agency to Sell.

A sale is, of course, to be distinguished from a consignment or delivery of goods by the owner to a factor or other agent for sale. In such case the agent receives the goods as the goods of his principal, who retains the property in them, and in dealing with them must act according to his instructions, and is bound, not to pay a price, but simply to account for the proceeds of such sale as he may make on his principal's behalf.5 Whether a contract is a contract of sale or a contract of agency is a question of substance, and not of form, and depends, not upon the name by which the parties choose to call it, but upon its real meaning, and often contracts which are clothed in the

(Mass.) 505; Riley v. Bank, 164 Mass. 482, 41 N. E. 679; Jones v. Rahilly, 16 Minn. 320 (Gil. 283); Morgan v. Dod, 3 Colo. 551.

51 Jones, Chat. Mortg. § 4. A mere lien. under which the property does not pass, is to be distinguished from a chattel mortgage. Scofield v. Elevator Co., 64 Minn. 527, 67 N. W. 645.

52 Jones, Chat. Mortg. § 8; Ex parte Hubbard, 17 Q. B. Div., at page 698; In re Morritt, 18 Q. B. Div., at page 232; Jones v. Baldwin, 12 Pick. (Mass.) 316; Parshall v. Eggart, 52 Barb. (N. Y.) 367.

53 Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093; Metropolitan Nat. Bank v. Benedict Co., 74 Fed. 182, 20 C. C. A. 377; In re Columbus Buggy Co., 143 Fed. 859, 74 C. C. A. 611; Walker v. Butterick, 105 Mass. 237; St. Paul Harvester Co. v. Nicolin, 36 Minn. 232, 30 N. W. 763; Keystone Watch Case Co. v. Bank, 194 Pa. 535, 45 Atl. 328; Lenz v. Harrison, 148 Ill. 598, 36 N. E. 567; Fleet v. Hertz, 201 Ill. 594, 66 N. E. 858, 94 Am. St. Rep. 192; Norton v. Melick, 97 Iowa, 564, 66 N. W. 780; Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Holleman v. Fertilizer Co., 106 Ga. 156, 32 S. E. 83; Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168, 80 S. W. 791.

Where the owner of a cheese factory agreed with dairymen to manufacture their milk into butter and cheese at a certain rate per pound, he to sell the product and pay them the proceeds, less his compensation, in proportion to the amount of milk furnished by each, the transaction was not a sale of the milk to him, but he was simply their agent. First Nat. Bank v. Schween, 127 Ill. 573, 20 N. E. 681, 11 Am. St. Rep. 174. See, also, Sattler v. Hallock, 160 N. Y. 291, 54 N. E. 667, 46 L. R. A. 679, 73 Am. St. Rep. 686.

language of, or are described by the parties as, contracts of agency, are in legal effect contracts of sale," and, on the other hand, contracts which use the language of sale are often in legal effect contracts of agency."

Same-Agency to Buy.

If a person is employed to buy goods on behalf of another, the relation is, of course, that of principal and agent." 56 se But, if it is the intention that the one is to buy on his own behalf and to sell the goods to the other, the transaction is a contract to sell.57

64 Henry Bill Pub. Co. v. Durgin, 101 Mich. 458, 59 N. W. 812; Mack v. Tobacco Co., 48 Neb. 397, 67 N. W. 174, 58 Am. St. Rep. 691; Chickering v. Pastress, 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309, Peoria Mfg. Co. v. Lyons, 153 Ill. 427, 38 N. E. 661; Norwegian Plow Co. v. Clark, 102 Iowa, 31, 70 N. W. 808; Alpha Check-Rower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Butterick Pub. Co. v. Bailey, 75 Iowa, 189, 75 N. W. 189; Weston v. Brown, 158 N. Y. 360, 53 N. E 36; Roosevelt v. Nusbaum, 75 App. Div. 117, 77 N. Y. Supp. 457; Sutton v. Baker, 91 Minn. 12, 97 N. W. 420; Arbuckle v. Kirkpatrick, 98 Tenn. 221, 39 S. W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Arbuckle v. Gates, 95 Va. 802, 30 S. E. 496; Howell v. Boudar, 95 Va. 815, 30 S. E. 1007.

Where goods are consigned on such terms that the consignee is at liberty to sell on such terms as he sees fit, but must in such case pay the consignor at fixed prices, until a sale is made the property remains in the consignor, but when he sells the property passes to him, and he sells on his own account, and not as agent. Ex parte White, L. R. 6 Ch. App. 397; In re Nevill, Id.; Nutter v. Wheeler, 2 Low. (U. S.) 346, Fed. Cas. No. 10,384; Gindre v. Kean, 28 N. Y. Supp. 4, 7 Misc. Rep. 582; Etna Powder Co. v. Hildebrand, 137 Ind. 462, 37 N. E. 136, 45 Am. St. Rep. 194; Vermont Marble Co. v. Brow, 109 Cal. 236, 41 Pac. 1031; 50 Am. St. Rep. 37. Cf. Harris v. Coe, 71 Conn. 157, 41 Atl. 552.

55 Eldridge v. Benson, 7 Cush. (Mass.) 483; Atlas Glass Co. v. Manufacturing Co. (C. C.) 87 Fed. 418.

56 Whitney v. Beckforth, 105 Mass. 267; National School Furnishing Co. v. Cole, 30 Ill. App. 156; Hatch v. McBrien, 83 Mich. 159, 47 N. W. 214; Keswick v. Rafter, 35 App. Div. 508, 54 N. Y. Supp. 850, affirmed 165 N. Y. 653, 59 N. E. 1124.

57 Black v. Webb, 20 Ohio, 304, 55 Am. Dec. 456. See, also, Moors v. Kidder, 106 N. Y. 32, 12 N. E. 818; Baring v. Galpin, 57 Conn. 352, 18 Atl. 266, 5 L. R. A. 300.

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