H.H. Babcock Company v. Williams

• Citation: 77 N.W. 791,75 Minn. 147
• Decision Date: 27 December 1898
• Docket Number: 11,424 - (195)
• Parties: H.H. BABCOCK COMPANY v. W.H. WILLIAMS
• Court: Minnesota Supreme Court

77 N.W. 791

75 Minn. 147

H.H. BABCOCK COMPANY v. W.H. WILLIAMS

Nos. 11,424 - (195)

Supreme Court of Minnesota

December 27, 1898

Action in replevin in the district court for Ramsey county against the assignee of Crisham & Winch to recover possession of four vehicles or, in lieu thereof, the sum of $905. The cause was tried before O. B. Lewis, J., and a jury. A verdict was directed in favor of plaintiff for two of the vehicles, and for a return to defendant of the other two. The verdict was set aside, and judgment was entered in favor of the plaintiff as the owner and entitled to the possession of all the vehicles. Defendant appealed. Reversed.

SYLLABUS

Unrecorded Contract Construed as Conditional Sale -- Invalid as to Creditors of Vendees.

While the written contract in question purports to be a consignment of goods to defendant's assignors for sale as the agents of plaintiff, yet it appears on its face that its real purpose is to cover up a conditional sale; that it was made in such form in order that plaintiff might give said assignors a false credit, by keeping the contract off record and still be protected. As to the assignors' creditors it must be regarded as a conditional sale; and, as it was never filed of record, the condition is void as to them.

Bishop H. Schriber, for appellant.

J. F. Hilscher, for respondent.

The assignee cannot assert a greater claim or title to the goods than that held by the insolvents. Head v. Miller, 45 Minn. 446. A conditional sale is a sale in which the transfer of title to the thing sold to the purchaser is made to depend upon the performance of some condition. 6 Am. & Eng. Enc. 437; Newmark, Sales, § 19. Where one party was to take goods from another, sell them and return monthly the amount of sales at the price charged by the latter, who was to furnish the former with all goods in his line, as in this case, the transaction imports a consignment of goods for sale and not a sale of them. Walker v. Butterick, 105 Mass. 237; Williams v. Davis, 47 Iowa 363; Berry v. Allen, 59 Ill.App. 149; Blood v. Palmer, 11 Me. 414; First v. Schween, 127 Ill. 573; Middleton v. Stone, 111 Pa. St. 589; Eldridge v. Benson, 7 Cush. 483. See also National v. Sims, 44 Neb. 148; Lenz v. Harrison, 148 Ill. 598. Such a consignment contract is not within the provisions of G.S. 1894, § 4148, which requires certain contracts to be filed. See Cortland Wagon Co. v. Sharvy, 52 Minn. 216; Dewes v. Merritt, 82 Mich. 198. The mere fact that the bailee agrees to pay a certain sum if the goods are not returned, does not itself change the transaction into a sale. Brown v. Hitchcock, 28 Vt. 452; Westcott v. Thompson, 18 N.Y. 363. See also National v. Goodyear, 90 Ga. 711; Dean v. Lombard, 61 Ill.App. 94; Dewes v. Merritt, supra.

OPINION

CANTY, J.

The plaintiff delivered a number of carriages and buggies to Crisham & Winch under the contract hereinafter mentioned. They sold several of the articles so delivered, and thereafter made an assignment for the benefit of their creditors, under the insolvency law of this state. At the time of making the assignment they had in their custody several of the carriages and buggies remaining unsold, which they turned over to their assignee. This is an action in replevin for the possession of the same, brought against the assignee.

The theory of the plaintiff is that the goods were merely delivered to Crisham & Winch to sell the same as the agents of plaintiff. The theory of defendant is that the goods were sold to Crisham & Winch under a contract of conditional sale, and that as the contract was not filed as provided by G.S. 1894, §§ 4148-4150, the condition is void as against their creditors.

At the close of the evidence each party moved the court to order a verdict in his favor, and thereupon the court ordered a verdict for plaintiff for all of the vehicles in question, except two, and ordered a verdict for defendant for these two, as to which it was claimed that the original contract had been modified.

Thereafter, in a motion for a new trial, plaintiff moved, under Laws 1895, c. 320, for judgment notwithstanding the verdict, which was granted, and defendant appeals.

The original contract consists of two parts. Crisham & Winch signed an order, directed to plaintiff, which, so far as here material, reads as follows:

"Please ship to us, via R.R. on or before soon as possible, or as soon thereafter as practicable, the following goods, hereinafter described, which we hereby agree to receive and pay for at prices named below; also, to pay all freight or express charges on same, and settle for according to terms given.

"Terms, as per contract on back of this order, per cent. for cash within days from date of shipment.

"Failing to make settlement promptly according to above terms, the whole amount for goods shipped by you to become due at once, and payable in cash upon demand, without discount.

"All repairs or parts of vehicles, the terms upon same are 'net cash.' [Then follows description of property, and price to Crisham & Winch of each article.]

"When orders for special jobs are given, such orders cannot be canceled after the job has commenced. * * * No understanding or agreement with salesmen will be recognized, unless stated in this order. This order will be filled as near date stated as possible, and will be understood to hold good until goods are shipped, and not subject to countermand. Our responsibility ceases when we take the bill of lading as per your instructions. Your recourse for losses, damages and delays in delivery is upon the carrier. We do not guaranty rates of freight, unless so specified in order, but will always get the cheapest we can on day of shipment. All orders taken subject to the approval of H.H. Babcock Company, and all claims for damages must be made within five days after receipt of goods. Title to the goods shipped on this order is to remain in H.H. Babcock Company until paid for in money, and should anything occur to affect my commercial standing, or should I become insolvent, any amount still unpaid, either in account or in note or notes, shall immediately become due, and it is agreed and understood that H.H. Babcock Company shall have the right to take possession of the goods. * * * After acceptance of order, H.H. Babcock Company agree to ship all goods they may be able to supply, but are not to be held liable for damages for orders not filled."

On the reverse side of the paper on which the above is found, Crisham & Winch signed the other part of the contract, which, so far as here material, reads as follows:

"Referring to the order given you for goods as listed on the other side of this agreement, we would say that we propose to handle your work exclusively for what vehicles we may require of yours, or similar grade, during the year 1897. We will receive, pay freight, and carefully store all goods that you send us upon our order, and be responsible for...