D.M. Ferry & Co. v. Hall

• Decision Date: 30 June 1914
• Docket Number: 521
• Citation: 188 Ala. 178,66 So. 104
• Court: Alabama Supreme Court
• Parties: D.M. FERRY & CO. v. HALL, Tax Collector.

66 So. 104

188 Ala. 178

D.M. FERRY & CO. v. HALL, Tax Collector.

No. 521

Supreme Court of Alabama

June 30, 1914

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Assumpsit by D.M. Ferry & Co. against Smith Hall, as Tax Collector, to recover taxes paid under protest. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

The following is Exhibit A:

D.M. Ferry & Co., Detroit, Mich.: Please forward in due season a number blank box of standard garden seed, flower seed and field seed, to sell on commission for the year 191--on the following terms, viz., 40% commission on the papers sold, and 25% on packages sold from the invoice prices; the unsold seed with the boxes to be returned in good order when called for, and the amount due for all seed not so returned to be paid for at same time.

On the reverse side was certain printing and blank not necessary to be here set out.

Exhibit B:

Memorandum of Shipment from D.M. Ferry & Co., Detroit, Mich to John Doe, Dothan, Ala. In compliance with your order we have this day forwarded you care of ______ box ______ of our standard garden seed, an itemized retail invoice of which you will find on inside of box cover. If at any time you have not a sufficient supply of 5 cent papers, please order such as you may need, and we will promptly forward them by mail post paid.

Then follow certain directions as to freight charges, etc., and the added caution:

Please have goods removed from depot promptly on arrival and avoid storage charges.

Exhibit C:

No allowance for exchange. Error or shortage must be reported at once. D.M. Ferry & Co. give no warranty, express or implied, as to descriptions, surety, productiveness or any other matter on any seed they send out, and they will not be in any way responsible for the crop. If the purchaser does not accept the goods on these terms, they are to be returned at once. We agree to buy back all unsold seed with boxes at prices billed, less discount, when our traveler calls.

This invoice and memorandum of shipment, together with the order marked Exhibit A, constitutes the original contract between D.M. Ferry & Co. and the original merchant. On the boxes shipped would be pasted the following paster, marked Exhibit D:

This case, including all papered seed and boxes invoiced on case cover are placed on commission, not sold outright.

D.M Ferry & Co.

Standish Backus, of Detroit, Mich., and Weil, Stakely & Vardaman, of Montgomery, for appellant.

Espey &amp Farmer, of Dothan, for appellee.

GARDNER J.

This cause was transferred to this court from the Court of Appeals under the provision of Acts of 1911, p. 449.

The appellant brought suit against the appellee for the recovery of $203 paid by appellant to appellee, as tax collector for Houston county, under protest; suit having been brought by said tax collector for said sum due as taxes and garnishment issued in aid thereof.

The cause was submitted in the court below upon an agreed statement of facts, in which it was agreed that the facts in said cause were as set out in said agreement, and that the "cause be submitted to the jury upon said statement of facts, and that the liability, if any, of the defendant arises out of said facts." The agreement further stipulates:

"It is further agreed by and between the parties hereto that the only question presented for the court for its decision, in this case is whether or not the assessment for the collection of the taxes, due on said seed, should have been made against the said D.M. Ferry & Co., or against the merchants to whom said D.M. Ferry & Co. had shipped the seed and in whose possession said seed were at the time the assessments were made, under the facts hereinafter set forth; and if the assessments for the collection of said taxes should have been made against said D.M. Ferry & Co., then the defendant is entitled to judgment; but if said assessments for the collection of said taxes should not have been made against D.M. Ferry & Co., then the plaintiff is entitled to recover." The sole question, therefore, for determination is: In whom, for the purposes of taxation, vested the title or property to the seed in possession of the retail merchants? If the seeds were the property of the appellant, then it is conceded and agreed the defendant is entitled to judgment, and, on the other hand, it is likewise conceded and agreed that, if the seeds were the property of the retail merchants, then appellant is entitled to judgment.

The order of the retail merchant, the letter of acceptance accompanied by the invoice, and the placing of the paster marked in the record "D" on the box when shipped, together with the method or course of dealing with reference to said transactions between the wholesaler and the retailer, as disclosed by said agreed statement of facts, are the matters upon which, according to said agreement, we are to conclude the title to said seed.

The order has on it the word "consignment," and that which is signed by the retailer has the words "to sell on commission," showing the terms as 40 per cent. commission on the papers sold, and 25 per cent. on the packages sold, from the invoice prices; the unsold seed, with boxes, to be returned in good order when called for, and amount due for all seeds not so returned to be paid at the same time.

The invoice which accompanied the memorandum of shipment had thereon, among other things, the following:

"Terms: To be settled for when traveler calls. Sold to Mr. John Doe, etc. We agree to buy back all unsold seeds with boxes at prices billed, less discounts, when our traveler calls."

The agreement shows that this memorandum of shipment and invoice, together with the order, constituted the original contract between appellant and the retail merchant, but that the boxes, when shipped, would have pasted on them the paster marked in record Exhibit D, and which appears in report of the case. The reporter will set out Exhibits A, B, C, and D, as found on pages 12, 13, 14, and 15 of the transcript, in his report of the case.

The following extract from the agreed statement of facts explains the method or course of dealing as between the wholesale and retail merchants, as to such transactions:

"At the close of each season in which said seed was so sold, the traveling salesman representing D.M. Ferry & Co., would call upon the retail merchant and adjust the local dealer's account with D.M. Ferry & Co., taking back the unsold seeds in said box or boxes, allowing credit for the seed at invoice prices, and collecting cash for the balance of the seed at invoice prices, less the commission provided for in the original contract. The retailer, in selling the foregoing seed to his customers, would fix the price at which he would sell them, and would also have entire control of the seed, while the seed was in his possession and control, and would also sell the seed and collect for the seed from his customers in his own name. D.M. Ferry & Co. were in no way interested in the price which the retailer obtained for the said seed, but merely took back the unsold seed, allowing credit therefor at invoice prices and collecting, for the seed not returned, the invoice prices, less commissions. The said seed were in packages and papers. D.M. Ferry & Co. printed a price upon said packages, but printed no price upon the papers; but, for the seed not returned by the retailer to D.M. Ferry & Co., the retailer accounted to D.M. Ferry & Co. for each package, not returned, at the price printed on said package, and at the price of five cents for each paper, less the commission.

"The retailer renders no account to D.M. Ferry & Co. of any sales made by him, and gives no information in regard thereto, but the representative of D.M. Ferry & Co. goes annually to each retailer, makes his own investigation from the seed that the retailer has on hand, and states the account between the retailer and D.M. Ferry & Co.

"There was no agreement between the retailer and D.M. Ferry & Co. that the seed would be sold at the prices named on the packages, nor as to the price at which the papers were to be sold; but the retailer was made to account to D.M. Ferry & Co. for all seed, not returned, at the prices printed on the packages and at five cents for the papers, which is invoice prices."

"Ordinarily where goods are consigned by one person to another for sale by the latter, the title thereto remains in the consignor; but whether the consignee is to be considered as a buyer or an agent depends upon the intention of the parties, and upon the real nature of the transaction rather than the language which the parties may have employed. So where the transaction is such that the consignee acquires complete dominion over the goods with the right to sell them upon such terms and conditions as he may see fit, and is bound to pay the consignor a stipulated price therefor, it amounts to a sale and delivery, and the title passes to the consignee, and such transfer of title is not affected by the fact that the goods are not to be paid for until resold by the consignee, or that he has an option of returning the goods which he has not resold." 35 Cyc. 290, 291.

Mr. Mechem in his work on Sales, in volume 1, § 46, has this to say:

"The distinction between sale and an agency to sell is ordinarily clear and simple, but, unfortunately, many cases are presented in which the parties, for the purpose of evading the operation of some local statute, of defeating the claims of creditors, or otherwise, have made contracts involving such a confused jumble of the elements of both sale and agency that it is exceedingly difficult to determine their

true character. Certain of these contracts have evidently been framed for the purpose of concealing

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