dict and judgment for plaintiff. Defendants bring error. Affirmed.

Statement by JENKINS, Circuit Judge:

The defendant in error brought suit in replevin to recover 300 head of Texas steers branded W. C. C. The declaration embraced three counts, one in the cepit, one in the detinet, and the third in trover. To the first and second counts, in addition to the usual pleas of non cepit and non detinet, there were pleas-First, of property in Simeon F. Hall, William Hall, and Jefferson E. Greer; and, second, of property in Daniel Hall. These pleas were filed by all the defendants to the suit, except Daniel Hall, who made default. The replication alleged property in the plaintiff, denying property in the parties named. At the trial a verdict passed for the plaintiff.

The bill of exceptions discloses that at the trial the plaintiff introduced three contracts between the cattle company (defendant in error) and Daniel Hall,-one dated September 6, 1884, one dated October 1, 1884, and one dated October 16, 1884. The first relates to 600 head of Texas steers, the second to 379 head, the third to 22 head, all branded W. C. C. The contracts are substantially alike in their terms. The following is a copy of the first: "This contract and agreement made and entered into this sixth day of September, 1884, by and between Daniel Hall, of Grundy county, Missouri, and the Western Land and Cattle Company, Limited, a corporation organized and existing under the laws of Great Britain, witnesseth, that the said Hall hereby agrees, within four days from this date, to receive. of the property of this said company, a number not to exceed six hundred (600) Texas steers, beef cattle, each and all of said steers being marked and branded with the brand W. C. C., from the said land and cattle company, near Lexington Junction, in Ray county, Missouri, where said cattle are now located and pasturing, for the following purposes and upon the following express conditions, only, to wit: The said Hall is to transport said cattle from their present location to his farm in Grundy and adjacent counties at his (Hall's) own charge and expense, and said Hall is there to properly feed, fatten, and care for said cattle for the purpose of their being profitably marketed by said company, and to that end said Hall agrees that said cattle shall not deteriorate in flesh or condition from their present state, and said Hall is to commence feeding said cattle corn by September 25, 1884, and keep it up while said cattle remain in his care; that said Hall shall be and is liable and agrees to pay for all losses of said cattle, arising from death, disease, escape, theft, or any cause whatsoever, at the agreed valuation of thirty-six (36) dollars per head. And it is further agreed by the parties hereto that the period of said pasturage and care of said cattle by said Hall shall extend to December 15, 1884, and that during said period, from time to time, the said cattle may and shall be shipped for sale, or sold where they may then be, by said company, by J. A. Forbes, its manager. And the said Hall further agrees to employ a competent herdsman, to be selected by said J. A. Forbes, whose sole duty shall be to attend to said cattle, and said Hall to pay said herdsman thirty dollars per month wages, and furnish board and lodging suitable for said herdsman. And, in full consideration for the full and faithful performance of all the acts and promises to be done and performed by said Hall as aforesaid, the said Hall agrees to receive in full compensation therefor all moneys that may be realized by said company from the sale of said cattle over and above the sum of thirty-six 05-100 dollars per head, after deducting all costs and expenses incurred by said company in and about the sales or shipments of said cattle. And the said Hall hereby, for himself, his heirs and assigns, expressly waives any lien, either as agister or of any other kind or character, or lien against said cattle which may arise during the performance of this contract, either by law or otherwise. And said Hall further agrees to keep and maintain said cattle while in his charge free from all claims, charges, liens, or liability whatever, from whatever source arising, except from the acts of said company or said J. A. Forbes." Delivery of 1,000 cattle under the several contracts was made. Of these cattle, 300 had been brought by Simeon F. Hall, William Hall, and Jefferson Greer, three of the plaintiffs in error, and composing the firm of

Hall, Greer & Co., from the farm of Daniel Hall, in Grundy county, Mo., and placed in the stock yards of the Union Stock-Yards & Transit Company, at Chicago. They were so taken and claimed by Hall, Greer & Co. under a chattel mortgage from Daniel Hall to them, dated December 13, 1884, of "three hundred (300) head of Colorado-Texan cattle, which are now being fed on my farm in Marion township, Grundy county, Missouri; said cattle being a part of the thousand cattle purchased by me of the Western Land and Cattle Company in September and October last. And I hereby certify that there are no other incumbrances against the 300 head of cattle hereby transferred. Said cattle being branded W. C. C. on the right side." The mortgage purports to be given to secure the sum of $5,000, with interest, on the 13th day of January, 1885, and was on the day of its execution filed for record in the office of the register of deeds of Grundy county, Mo.

Hall, Greer & Co. also gave evidence that at the time of the giving and the recording of the chattel mortgage the 300 cattle described therein were on the farm of Daniel Hall in Grundy county, and in his possession; that they saw the cattle there in the possession of Daniel Hall, and that, at the time they so loaned and advanced the money to Daniel Hall, they caused an examination of the records in the office of the recorder of deeds of Grundy county, for the purpose of ascertaining whether there was of record any lien or incumbrance on the cattle by way of chattel mortgage, bill of sale, conditional sale, or otherwise, and whether there was anything on the records of that office to show that Daniel Hall was not the absolute and unconditional owner of the cattle, in his own right, free from all liens or incumbrances of any kind whatever; that upon such examination nothing was found of record, showing that Daniel Hall was not such owner, nor was there any record of any incumbrance or lien by way of mortgage, bill of sale, conditional sale, or otherwise, except one chattel mortgage by Daniel Hall to Keenan & Hancock, of Chicago, Ill., on 150 cattle of the 1,000 cattle, to secure the payment of $1,000, and also a mortgage by Daniel Hall to Hall Bros., of Kansas City, on other of said 1,000 cattle, to secure the payment of $1,287.85; that at the time they loaned the money, and took such chattel mortgage as security therefor, they believed that Daniel Hall was such owner, and had no notice, knowledge, information, or belief that the plaintiff had or claimed any right or title to the cattle, or any of them, but that they did believe, in good faith, that Daniel Hall was the absolute owner of the cattle; that, at the time of making the chattel mortgage, Daniel Hall pointed out to Hall, Greer & Co. 239 cattle that were separate and apart from all other cattle, in a lot by themselves, and designated them as a portion of the 300 cattle described in the mortgage, and also showed and pointed out to Hall, Greer & Co. other cattle on his farm, to a greater number than 61, as cattle from which the remainder of the 300 cattle described in the chattel mortgage were to be taken; that afterwards Daniel Hall, with Simeon F. Hall, separated from the cattle so pointed out 61 other cattle, to make up the number of 300 cattle described in the chattel mortgage; that said 239 cattle and said 61 cattle were afterwards, and before the commencement of this suit, taken by Hall, Greer & Co. on their chattel mortgage from the farm of Daniel Hall, in Grundy county, and were by them, with the consent of Daniel Hall, and with the knowledge of one Stevens, agent of the plaintiff, put on board of cars for shipment to Chicago, for sale on the market in Chicago, and were by them transported to Chicago, and placed in the possession of the Union Stock-Yards & Transit Company, where they were when they were taken on the writ of replevin in this case.

The defendants also gave evidence to the effect that, of the said $5,000, there was appropriated enough to pay the debt owing by Daniel Hall to Keenan & Hancock; that there was left at the bank in Trenton, Mo.. $1,287.75, to pay the debt of Hall Bros., of Kansas City, upon their delivering to and. surrendering to the bank their note against Daniel Hall, and a release of the chattel mortgage to Hall Bros.; that Hall Bros. did not comply with the conditions on which the money was left at the bank, and did not obtain the money, and that on December 13, 1884, Hall, Greer & Co. withdrew such money from the bank; and that there remained unpaid, of the $5,000 secured by the chattel mortgage to Hall, Greer & Co., the sum of $3,753.92, with interest from December 13, 1884, at 10 per cent. per annum.

At the trial Hall, Greer & Co. offered to prove certain facts. The court heard the evidence in the absence of the jury, the question of its materiality being reserved. Such evidence was to the effect that Daniel Hall, prior to the 6th day of September, 1884, and prior to the execution and delivery of the contracts, had negotiations with certain brokers or agents of the plaintiff (defendant in error) in regard to the purchase of the cattle from the plaintiff at the price of $35 per head, for a term of credit, and interest on the purchase price at 12 per cent. per annum from that time until the time to be agreed upon between the parties for the payment of the purchase price for the cattle; that the cattle described in the contract of September 6, 1884, were none of them delivered to Hall until after the execution of the contract, and were delivered to Hall under and in pursuance of the contract, and that when the contract was prepared the sum of $36.05, named therein, was arrived at by casting interest on the sum of $35 at 12 per cent. for the time to elapse between the date of the contract and the time specified in the contract for shipping the cattle, and that the declared purpose of the contract, at the time it was so made and delivered, was that the cattle company should retain the title to the cattle, and should sell the same, giving Hall the benefit of any increase in the market value of the cattle, by reason of the feeding, above $35 per head, and 12 per cent. per annum interest; and that the same state of facts existed in relation to the cattle .described in the other two contracts, with the exception that the cattle described and mentioned in the two contracts dated October 1st and 16th, respectively, were actually delivered into the possession of Hall before the two contracts were signed. Thereupon the court decided that such evidence was not competent to be submitted to the jury; that the contracts must be held to be controlling and binding on the parties, as containing the whole transaction between them in relation to the cattle described therein, and refused to submit such evidence to the jury, or to permit the defendants to give evidence of any matters in relation to the negotiations between the parties in regard to the terms and conditions on which the cattle should be delivered to Hall, which were had before the con tracts in writing were made; that the negotiations in regard to the proposed purchase of the cattle by Hall were between Hall and certain brokers of the plaintiff, who had no authority to make a sale of the cattle upon credit; and that when the proposition of Hall was submitted to Mr. Forbes, the manager of the plaintiff, he refused to make a sale to Hall on credit, but proposed to let Hall take the cattle on the terms of the contracts, and Hall acceded to the term so insisted upon by Forbes. To this ruling the defendants excepted. The court directed a verdict for the plaintiff, to which ruling a proper exception was taken.

J. A. Sleeper, for plaintiffs in error.

Charles B. McCoy, (Charles E. Pope, of counsel,) for defendant in

error.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

If the con

JENKINS, Circuit Judge, (after stating the facts.) tract constitutes a bailment of personal property, and Hall was an agister, the judgment is clearly right. If, on the other hand, the contract should be construed as a conditional sale of personal property, reserving title in the vendor until payment of the purchase price, then, by force of the statutes of Missouri, (Rev. St. c. 34, §§ 2505-2508,) the contract is void as to Hall, Greer & Co., who, for the purposes of this case, as presented to us, must be deemed purchasers for value, without notice of the rights of the cattle company. The purpose of that statute is to avoid, as against subsequent purchasers in good faith, and creditors, all secret liens upon personal property.

Hervey v. Locomotive Works, 93 U. S. 664; Fosdick v. Schall, 99 U. S. 235, 250; Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51; Coover v. Johnson, 86 Mo. 533; Peet v. Spencer, 90 Mo. 384, 2 S. W. 434.

The cause must therefore be determined by the construction to be placed upon the contracts under which possession of the cattle was delivered to Hall. In the solution of that question, we must search for the intention of the parties, as it may be gathered from a reading of the entire instrument, and not from any separate provision of it, the real design of the contracting parties, as disclosed by the whole contract. We should not regard any mere formula of words, nor permit parties to avoid the statute by any cloaking of intent. If, as is asserted, the contract, as expressed, is a mere device to evade the law of Missouri, it undoubtedly becomes the duty of the court to tear away the mask, and declare the real nature of the transaction. The true intent and meaning of the contract does not depend upon "any name which the parties may have given to the instrument, and not alone on any particular provisions it contains, disconnected from all others, but on the ruling intentions of the parties, gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form, of the instrument is of little account." Heryford v. Davis, 102 U. S. 235, 243.

It is of the essence of a contract of sale that there should be a buyer and a seller; a price to be given and taken; an agreement to pay, and an agreement to receive. "Sale" is a word of precise legal import. "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." Williamson v. Berry, 8 How. 544. A conditional sale implies the delivery to the purchaser of the subject-matter, the title passing only upon the performance of a condition precedent, or becoming reinvested in the seller upon failure to perform a condition subsequent. It is not infrequently a matter of difficulty to accurately distinguish between a conditional sale and a bailment of property. The border line is somewhat obscure, at times. The difficulty must be solved by the ascertainment of the real intent of the contracting parties, as found in their agreement. There are, however, certain discriminating earmarks, so to speak, by which the two may be distinguished. It is an indelible incident to a bailment that the bailor may require restoration of the thing bailed. Insurance Co. v. Randell, L. R. 3 P. C. 101; Jones, Bailm., (3d Ed.) pp. 64, 102; 2 Kent, Comm. § 589. If the identical thing, either in its original or in an altered form, is to be returned, it is a bailment. Powder Co. v. Burkhardt, 97 U. S. 116; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99. In a contract of sale there is this distinguishing test, common to an absolute and to a conditional sale: that there must be an agreement, expressed or implied, to pay the purchase price. In a bailment, if a bailment for hire, there must be payment for the use of the thing let or bailed. Heryford v. Davis, supra. If service is to be rendered the subject-matter of the bailment, there must be

compensation for the service, unless the bailment be a mandate.

In

a contract of conditional sale the agreement to pay the purchase price may be masked so as to give it the appearance of an agree ment to pay for use. In such case the court must ascertain the real intention of the contracting parties from the whole agreement, read in the light of the surrounding circumstances.

We must therefore subject the provisions of the contracts in question to the tests declared, to ascertain the real design of the contracting parties; to determine whether, under them, the cattle were bailed, or conditionally sold. Careful scrutiny of the agreements, in the light of legal principles, compels us to the conviction that they must be held to be contracts of bailment. Their essential terms are within narrow compass. Hall agreed to transport the cattle to his farm at his own expense, and there feed them, that they might be profitably marketed by the cattle company. He covenanted that they should not deteriorate in flesh or condition. He bound himself to pay, at an agreed valuation, for all losses of the cattle arising from "death, disease, escape, theft, or any cause whatever." He was to employ at his own expense a herdsman selected by the cattle company. The pasturage was to extend over a period of some 14 weeks, during which time the cattle company should ship the cattle to market, or sell them in pasturage. Hail was to receive, in full compensation for his services and expenditures, all moneys realized from the sale of the cattle by the cattle company in excess of $36.05 per head, after deducting the expenses of shipment and sale. He also waived any lien upon the cattle for his own services. There is wanting here an essential element of a sale, an agreement to pay a price. Hall took upon himself no obligation of that character. He assumed no debt to the cattle company. If the cattle, upon sale, should produce less than the stated amount per head above transportation and expense of sale, the loss would fall upon the cattle company, not upon Hall. The latter took no risk of the market, except as it might affect his compensation for care and feed of the cattle during the period of pasture. The value of the cattle would depend largely upon their condition when exhibited in market. That condition depended largely upon the character of their care and pasturage. This being within the peculiar duty of Hall, it was wisely provided, to stimulate him to diligent care of the cattle, that compensation for his service should be contingent upon the amount realized upon sale. So to that extent he took the risk of the market. But if, by reason of a general depreciation in the value of cattle, the stated sum per head should not be realized, Hall would lose compensation for his service, and the cattle company would suffer the decrease in value. that each party assumed a hazard of the venture,-the one having at risk his property; the other, his compensation for service in the care of that property. Hall was a mere agister, with compensation for service contingent upon the price obtained upon sale of the cattle. He was under no obligation to purchase the cattle, nor to pay for them, nor did he warrant their market value. We perceive no suggestion in the writings that any conditional sale of the cattle

So