55 Ill. App. 615 | Ill. App. Ct. | 1894
delivered the opinion oe the Court.
The appellants insist that the real transaction between The John Church Co. and Chatterton was a sale of the pianos, and that the written contract entered into between them, though in form a consignment of the pianos for sale, was intended to cover a sale and preserve a lien in favor of the vendor, for the purchase price of the instruments. Appellants do not contend that there is proof in the record, outside of the written instrument, from which the transaction should be deemed a sale, but rest their contention alone upon the construction of the agreement. The contract, to us, seems to be a consignment of pianos for sale, and not a sale of them. We see nothing in its terms and conditions, or in the instructions to agents attached to it, to mark the transaction as a sale, and the agreement but a devise to preserve a lien for the purchase price. The first clause states explicitly that the pianos are held on consignment, and it is not argued that a contrary inference is aided by anything found in it. The second clause and the third relate to the " same matters, and should be considered together. They simply provide that each sale of a piano shall be accounted for as soon as made, and that all moneys, notes or property received by the sale shall be paid over to, and shall belong to The John Church Co. The notes, if notes are taken, to be made payable to the company, and payments thereof to be guaranteed by Chatterton, and that the Church Co. shall hold the entire proceeds of each sale until settlement is made for the piano sold, that is, until the Church Co. have received in cash from the proceeds of the sale the invoice price of the pianos.
We see nothing in this inconsistent with the position that the instruments were to be sold by Chatterton as the agent of the Church Co. It is suggested that under these provisions the supposed agent receives no compensation or commission, which is supposed to indicate that the goods were not sold by an agent.
It is clear from a consideration of the contract, and the instructions to agents attached to, and forming a part of it, that Chatterton’s compensation was the excess that he might be able to obtain by the sale of any piano above the invoice price thereof. The clause under consideration places the entire proceeds of each sale in the possession of the Church Company, as its property, until the invoice price should be realized by them therefrom. The effect and purpose of this was to allow the Church Company to obtain the portion due it before the agent could receive his commission to give it priority in point of time of payment and to devote the proceeds, if necessary, wholly to that purpose, leaving the balance, whether little or much, to the agent, hi othing in all this indicates a sale as we view the matter. The appellants make no criticism of the fourth clause, but as to the fifth, say that it was wholly unnecessary, if the transaction was a bailment as a consignor for sale only, would have no occasion to contract for the right to demand and receive back unsold goods. It is usual to fix by the terms of an agreement the time for which it shall be in force. Without such a special agreement in such a transaction as the one at bar, we would not be inclined to hold that the consignor might withdraw his goods from sale at pleasure. Eeasonable notice of an intention so to do should be required in the absence of a fixed period for the termination of such a business undertaking, as these parties were engaged in. It was thérefore entirely proper to stipulate, as was done by the fifth clause, that the consignor might withdraw his goods from sale at will. It is argued that the sixth clause shows that the contract was a sale and was inserted in order to provide a way to get the goods back with payment in cash for any depreciation in case Chatterton should fall into financial straits. We do not think so, but think the clause was inserted because the Church Company wished to have Chatterton give the business of selling its pianos especial attention, and yet did not desire to furnish him with a larger stock of pianos than should be reasonably required nor to allow him to keep unsold pianos, which, if returned, might be sold by other agents at other points. One who replenishes his stock in trade by purchases will be likely to confine his orders within reasonable limits, for he must keep and pay for what he buys; but one who is selling articles as an agent has no such personal interest to operate as a check upon him, and, if free to do so, might, in the hope of adding to his gains, unduly increase his stock, to the manifest damage and injury of the principal. The sixth clause ~ was framed to protect the owners of the pianos in this respect and seems to us to have been properly devised to that end. The clause in the “ Instructions to Agents ” which binds Chatterton to pay interest on the value of any instrument that he has had for four months until he returns it, was inserted for a like purpose. It was intended to restrain Chatterton from ordering pianos beyond the reasonably anticipated needs of his trade, and also operated as an incentive to him to seek for and find buyers for the pianos in order . that he might avoid the payment of interest upon the invoice price of such as were unsold, and further to induce him to return instruments, if his stock should be larger than the demahds of his business warranted or any instruments not such in point of price, finish or quality as his customers desired to buy. Appellants contend that Chatterton had unlimited authority to sell at such prices as he might see fit to fix, a power, as they argue, consistent only with ownership. We think that he had not such authority, at least between himself and the Church Company, though a bona fide purchaser from Chatterton might have been protected. The provisions of the contract are that the Church Company was to receive out of the proceeds of each sale the invoice price, if the sale was not made for cash, and if for cash, they were to accept twenty per cent discount. Sales were to be made at prices consistent with these provisions. Nothing in the agreement or instructions to agents creates a liability upon the part of Chatterton to pay for the pianos. He did not buy them, did not agree to pay for them, and was in no wise obligated to do so. In the case of Chickering v. Bastress, 130 Ill. 206. and that of Peoria Manufacturing Co. v. Lyons, Coroner, etc., 55 Ill. App. 41, agreements, similar to the one under consideration, were held to be sales of the property. In each of these cases the pretended agents were required to execute notes payable to the principal for the goods and to agree that the proceeds of sales should be applied to the payment of the notes which remained binding obligations upon the makers until paid. This feature of the transaction in each of the cases cited, influenced in a large degree the decision of the court. In its facts the case of Murch v. Wright, 46 Ill. 487, is not at all like the case at bar. There a piano priced at $700 was delivered to one denominated a lessee, who paid $50 on receipt of the instrument, and bound himself to pay $50 each month thereafter until the full sum of $700 should be paid. The transaction was held a sale. In the case at bar Chatterton assumed no liability and did not, in our opinion, become the owner of the pianos, but held them for sale for the John Church Company. Chatterton was the owner of certain other pianos which he sold to the Church Company during the time he was acting as its agent-These pianos were, at the time of such sale, in Chatterton’s place of business, where were also the pianos held by him for sale under the contract we have been considering. .An agent of the Church Company came to his place of business and there the contract of purchase and sale was consummated, and it was there also agreed that the pianos so sold should be received by Chatterton into and become a part of the stock of pianos held by him for sale under the contract with the Church Co. These pianos were present at the time and place when and where the sale was concluded, and were designated, but were not removed from the place of sale and remained there to be sold by Chatterton, as agent, together with the other pianos likewise in his control. The good faith of this sale is not attacked. It is, however, contended that the vendor retained the possession, and the sale was for that reason illegal and of no avail against creditors. A change of the location or the passing from hand to hand of the article sold is not indispensable to a valid delivery, but the character of the article, its bulk and weight, etc., the facility with which it might be removed or handled, are to be considered. In the case at bar we think the mere designation of the pianos and the surrender by the vendor of all power of control over them, and the rightful assumption of such power by the vendee, was a sufficient delivery to consummate the sale, not only as between the buyer and seller, but against creditors, so long as the vendee continued so in possession. The fact that the buyer returned them to the possession of the vendor by the same mode of delivery, may be a circumstance tending to show that the transaction between them ivas merely colorable, but it is not sufficient to conclusively brand it as illegal. Wright v. Grover et al., 27 Ill. 426. It may be, and in this case was, we think, satisfactorily explained. The judgment and order of the County Court is affirmed.