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fire; will pay all expenses whatever; will sell to no person or firm on credit whatever, except such as is of undoubted solvency and financially responsible, and on all times sales which shall not exceed twelve months will take notes on blanks as enclosed, with interest at the rate of seven per cent per annum from the date of sale; will indorse all notes, guaranteeing their prompt payment when and where due; will so conduct the business that the time of final payment in Grand Rapids shall not exceed twelve months from date of shipment; will transmit to the office of the party of the first part the proceeds of each cash sale, or part cash sale, on the day the sale is made or by first mail thereafter; and further, on the last day of every month will make out an account of sales for the current month, and transmit the same, together with all notes, to the office of the party of the ** first part, and at any time after twelve months from date of shipment, to give his own note for balance of consignment unpaid, on wfour months, with interest at seven per cent from date last above named, if so required by party of the first part. But nothing herein shall be construed as amounting to a positive sale without said requirements, and that during the continuance of this contract they will sell no wagon other than ; third, it is further understood and agreed that the party of the first part will invoice all wagons to the party of the second part at the prices specified on the back of this agreement, and that on final settlement of each consignment all sums over and above such specified prices for which the party of the second part may sell the wagons shall be allowed to the party of the second part as full commission and other charges, more especially enumerated in clause 2 of this agreement.” Jt was held the relation created by this agreement was that of principal and agent and not vendor and vendee. We there said (page 603): “There is no similarity between this case and cases where there is a conditional sale or sales made, with a provision in the contract that the title to the property shall not pass until paid for by the vendee. The rule, therefore, established in Murch v. Wright, 46 Ill. 487, 95 Am. Dec. 455, and other cases of like import, does not apply here. The contract is not a mortgage, nor is it an instrument in the nature of a mortgage. Harrington was not indebted to Harrison. There was no debt to be secured, and in the absence of a debt it is not perceived what object the parties could

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late in making a mortgage. . . . . Harrington did not agree
to purchase the property, nor did Harrison agree to sell to him.
The price of the wagons was specified on the back of the con-
to, and Harrington was clothed with authority to sell, and
Klim as his commission whatever sum he might receive over
# oxified price. The commission over the specified price
To the interest, and the only interest, Harrington had in the
Forty, and * whether that would amount to anything
& ended entirely upon the success he might meet with in
Tiking sales. Harrington never gave a note or any other
tigion agreeing to pay for the wagons, and by the terms
of the contract there was no provision under which he could
it any time become the owner of the property. . . . . Chick-
ting 7. Bastress, 130 Ill. 206, 17 Am. St. Rep. 309, 22 N. E.
#!!, has been cited as an authority that the transaction is a sale.
There are several features of the contract involved similar to
the Contract in the case cited. But there is one marked dis-
tinction between that case and this one. There notes were given
T receipt of the goods, and upon the payment of a note given
for any one invoice the consignees were relieved of all further
issility as respected that consignment, and the title to the
Forty would vest. The contract in this case contains no
such provision.”
The case at bar and that presented to the court in Lenz v.
Himism, 148 Ill. 598, 36 N. E. 567, are not different in any
(Tolling aspect. The circuit court erred in the construc-
to given to the letters which constitute the contract between
the appellant and the fur company.
A question not touched upon may again arise upon a retrial
of the cause, and must therefore be determined. The affidavit,
wit and bond in the replewin suit became lost prior to the
ismissal of that cause in the circuit court. The appellant
Lified the court that such files were lost, and asked leave
to substitute true copies of the affidavit, writ and bond, to
* Meeived in lieu of the originals. Leave was granted and
the appellant filed copies, and these copies stood as the origi-
mals in that court. The copy of the bond so filed by the ap-
Kllant was produced in evidence on the hearing of the case
at bar. He cannot be permitted to complain that the court,
in the case at bar, received and treated the copy as competent
evidence against him. The surety on the bond has not joined
in this appeal and does not object to the action of the court.
* Jurisdiction to entertain suits on lost instruments un-
dor seal have been entertained by equity courts from an early


day. Jurisdiction in equity attached because it was the doctrine of the common law that an action at law could not be maintained on a lost bond, because there could be no profert of the lost instrument, without which the declaration would be defective. Section 19 of the Practice Act rendered it unnecessary to make profert of the instrument sued upon, and though a court of equity may still exercise the jurisdiction assumed by those courts while profert was necessary in an action at law, still the effect of the statute was to remove every obstacle to the prosecution of such suits in courts of law.

The judgment of the appellate court and that of the circuit court are each reversed, and the cause will be remanded to the circuit court for further proceedings in conformity with this opinion.

Chief Justice Magruder dissented. He maintained that the correspondence between the parties after the arrangement was entered into and the course of business, as conducted between them in the shipment of goods and the sending of statements and invoices, were acts on their part indicating the construction placed by them upon the agreement contained in their letters; that in determining the meaning of this agreement, it should be remembered that the policy of the laws of Illinois does not permit the owner of personal property to sell it, either absolutely or conditionally, and still continue in its possession; that possession is one of the strongest evidences of title to this class of property; that if the real purpose of the agreement was to cover up a sale and preserve a lien for the price of the goods, it made no difference that the transaction was called upon its face a consignment for sale; that the arrangement between the parties cannot be construed otherwise than a scheme for the sale of goods upon credit, and the designation of the transaction as a consignment was merely a device to cover up its real character; that there was no provision in the contract as to the party who should bear the expenses of the shipment and sales, such as freight, storage, and insurance, and it appeared that all these expenses were to be borne by the fur company and not by Fleet; that no provision could be found in the contract for the compensation to be received for selling the goods if they were to be sold by the consignees as agents, and that there was no provision that the latter would retain all the proceeds of the sales over and above the prices in the invoices and statements made with the letters; that there was nothing in the letters expressed in explicit terms or reasonably to be implied which permitted Fleet to demand a return of the goods and which gave the consignee the right to return them in the event of a failure to sell. The judge cited cases from the supreme court of Illinois, such, for instance, as Chickering v. Bastress, 130 Ill. 206, 17 Am. St. Rep. 309, 22 N. E. 542; Lonergan v. Stewart, 55 Ill. 44; Lenz v. Harrison, 148 Ill. 598, 36 N. E. 567; Peoria Mfg. Co. v. Lyons, 153 Ill. 427, 38 N. E. 661, all of which he claimed were sustantially identical with the principal case, and were determined contrary to the conclusion reached in it.


I. Scope of Note. II. Absolute Sales.

a. Defined. b. Distinguished from Other Transactions, 1. Conditional Sales. 2. Bailments. A. In General. B. Of Cereals in Warehouse. C. Custom or Usage. D. With Privilege of Purchase. 3. Exchange. 4. Assignment. A. In General. B. For Benefit of Creditors. 5. Contract for Work, Labor, and Materials, III. Conditional Sales. a. Idistinguished from Other Transactions. 1. Mortgage. 2. Pledge or Security. 3. Consignment. 4. Lease. b. Contract of “Sale or Return.”

I. Scope of Note.

Several of the subdivisions going to make up this note have been discussed from time to time in this series. It has been deemed advisable, however, to treat the subject anew, in view of the intimate relations existing between the various parts, and of late decisions bearing thereon. This note will be confined to transactions as between the parties thereto, the rights of creditors and third persons being touched upon only incidentally.

II. Absolute Sales.

a. Defined.—A sale is a word of precise legal import, both at law and in equity. It means at all times, a contract between parties, to give and to pass rights of property for money—which the buyer pays, or promises to pay to the seller for the thing bought and sold: Will


Bales and bailments distinguished: 10 Am: Dec. 490.
Ielivery of wheat to miller, to be paid for in flour: 34 Arno Dec. 215.
Transaction when sale and when bailment: 59 Am. Dec. 630.
Conditional sales: 37 Am. Rep. 664; 42 Am. Rep. 108.
question whether transaction is mortgage or conditional sale: 1 Am. Bł. Rep. 68.
Distinction between sale and bailment: 2 Am. St. Rep. 711.
Conditional sale as equitable mortgage: 4 Am. St. Rep. 699.
Sale or consignment: 45 Am...St. Rep.,208.
what constitutes conditional sales: 46 Am. St. Rep. 29%

Am. St. Rep., Vol. 94-14

iamson v. Berry, 8 How. 495. It has also been defined as a transmutation of property from one person to another for a price: Gardner v. Lane, 12 Allen, 39. Said Chief Justice Bigelow in that case, speaking of the essential requisites of a contract of sale: “A more complete enumeration of these would be, competent parties to enter into a contract, an agreement to sell, and the mutual assent of the parties to the subject matter of the sale, and the price to be paid therefor.” The price, however, need not necessarily be money, but if the property is sold for a fixed money price, whether it be paid in cash or in goods, it is a sale: Picard v. McCormick, 11 Mich. 68. See, however, Edwards v. Cottrell, 43 Iowa, 194. Where goods are sold to be paid for wholly or in part by other goods, or by labor, or otherwise than in money, the vendor cannot sue for goods sold and delivered, but the action must be on the agreement: Slayton v. McDonald, 73 Me. 50; but in Forsyth v. Jervis, 1 Stark. 437, 2 Eng. Com. L. 169, where the purchaser was to give goods in part payment, and he refused to deliver them, it was held that the vendor might sue for the stipulated price. Although a sale need not be for money, there must be an express or implied agreement that the transfer is a sale on one hand and a purchase on the other, to have the effect of transferring title: Borland v. Nevada Bank, 99 Cal. 94, 37 Am. St. Rep. 32, 33 Pac. 737. Other definitions of a sale will be found in McCall v. Powell, 64 Ala. 254; Nance v. Metcalf, 19 Mo. App. 183; Madison Ave. etc. Church v. Baptist Church, 46 N. Y. 131, 11 Abb. Pr., N. S., T32; Wittkowsky v. Wasson, 71 N. C. 451; Huthmacher v. Harris, 38 Pa. St. 491, 80 Am. Dec. 502; Creveling v. Wood, 95 Pa. St. 152.

b. Distinguished from Other Transactions.

1. Conditional Sales.—As the name implies, a conditional sale is one which depends upon some contingency to determine the passing of title, which may be the happening or not happening of any event. Conditional sales, as between the parties, are recognized in every jurisdiction, and are uniformly held valid. In order to constitute a conditional sale, the title must remain in the vendor, for there can be no conditional sale with title in the vendee: Frick v. Hilliard, 95 N. C. 117, in which case a mote was given for the property sold, in which it was provided that it was to be a lien thereon till paid, and the court held it no conditional sale, as the title passed. The most usual condition which must be complied with in order to transfer title is that the property sold be fully paid for: Thornton v. Cook, 97 Ala. 630, 12 South. 403; Robinson's Appeal, 63 Conn. 290, 28 Atl. 40; Fleury v. Tufts, 25 Ill. App. 101; Vaugh v. Hopson, 10 Bush (Ky.), 337; Fifield v. Elmer, 27 Mich. 47; Bennett Bros. Co. v. Tam, 24 Mont. 457, 62 Pac. 780; Porter v. Pettengill, 12 N. H. 299; Jillson v. Wilbur, 41 N. H. 106; Cole v. Berry, 42 N. J. L. 308, 36 Am. Rep. 511; Ballard v. Burgett, 40 N. Y. 314; Boon v. Moss, 70 N. Y. 465; Bean v. Edge, 84 N. Y. 510; Ballew v. Sudderth, 10 Ired. (32 N. C.) 176;

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