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 statеment 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 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 judgmnt, and, on the other hand, it is likewise conceded and agreed that, if the seeds were the property of the retail merchants, then apрellant 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
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 оriginal 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 obtain
“The retailer renders no account to D. M. Perry & Co. of any sales made by him, and gives no information, in regard thereto, but the representative of D. M. Perry & 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. Perry & Co.
“There Avas no agreement between the retailer and D. M. Ferny & Co. that the seed would be sold at the-prices nаmed on the packages, nor as to the price at which thé papers were to be sold; but the retailer was-made to account to D. M. Perry & Co-, for all seed, not returned, at the prices printed on the packages and at five cents for the papers, Avhich 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 Avkere 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 ihe
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 jximble 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 a sale under thе guise of an agency, while others have been drawn with a vieAV to having them construed as contracts of sale or agency, as might best suit the' convenience or subserve the purposes of their framers. In construing these anomalous instruments, courts look chiefly at the essential nature and perponderating features of the Avhole instrument, and not at the peculiar form of isolated parts of it. It matters very little what the parties have chosen tо call their contract. * * * If the parties have made a contract which really operates to transfer the' title, it is a sale, notAvithstanding they may have labeled it a ‘special selling factor appointment,’ or have expressly stipulated that the alleged factor ‘shall never purchase such goods for his own account.’ So with regard to the use of the term ‘consign.’ It may express the true state of the case, and, if so, it will be given effeсt; or it may be a mere subterfuge, and, if it be the latter, ‘there
This is peculiarly illustrated by the cases of Ar-buckle Bros., whose contracts have been the subject of review in some of the courts of last resort, notably those of Georgia, Tennessee, and Virginia, wherein it was held that notwithstanding the contract was called, and purports on its face to be, a “special selling factor appointment,” stipulates for a retention of title, and that the goods shall be consigned.and held by the party, merely as a factor, and that such factor shall never purchase such goods on his own account, and the same to be sold in name of the factor, but only as the factor of Arbuckle Bros., and only at such prices and on such terms, as said Arbuckle Bros, may give from time to time. The contract provided also for certain “allowances' and commissions.” There were other provisions as to payments, etc., and these courts held that the entire contract disclosed a sale and not an agency, notwithstanding the many such expressions to be found therein.—Arbuckle Bros. v. Gates & Brown,
Speaking of this contract, the court in the latter case says: “It appears to have been drawn for the purpose of enabling Arbuckle Bros, to ‘run with the hare or hold with the hounds/ according as, in- the exigencies of a given case, their interest might dictate.”
In referеnce to the same contract, the Supreme Court of Virginia, in above case of Arbuckle Bros. v. Gates & Brotan, said: “The agreement was an attempt to accomplish that which cannot be done — to make a sale of personal property and at the same time constitute the buyer simply an agent of the seller to hold the property un
The following excerpt from the case of Buffum v. Descher,
The case often cited and referred to as a leading case among cases of this character is that of Ex parte White, L. R. Ch. 397. In stating the transaction between the parties, James, L. J., in his opinion says: “Mr. Nevill was to dispose of the goods sent to- him by Toole & Co. and was nоt to pay for them unless he disposed of them, and he was to return, at the end of every month, an account of sales that he had actually made; and then, after the lapse of another month, he was to pay in cash for the amount, of goods he had disposed of, according to
The opinion then proceeds: “If he was entitled to alter them, to manipulate them, to sell them at any price that he thought fit after they had been so manipulated, and was still only liable to pay for them at a price fixed beforehand, without any reference to the price at which he had sold them, or to anything else than the fact of his having sold them in a certain month, it seems to me impossible to say that the produce of the goods so sold was the money of the consignors, or that- the relation of vendor and purchaser existed between Toole & Co. and the different persons to- whom he sold the goods.” (Italics ours.)
The opinion also says: “That it has been admittеd in the course of the argument that there is no magic in the word ‘agency.’ It is often used in commercial matters when the relationship is that of vendor and purchaser.”
It was held in that case that: “Mr. Nevill Avas in the position of a person having goods ‘on sale or return.’ ”
In the same case from Avhich Ave have just quoted, Mellish, L. J., said: “But if the consignee is at liberty, according to the contract between him and his consign- or, to sell at any price he likes, and receivе payment at any time he likes, but is to be bound, if he sells the goods, to pay the consignor for them at a fixed price at a fixed
The following authorities also may be cited in addition to the above, to the effеct that the mere use of the words “agent,” or “consignment,” or “commissions,” etc., does not determine the character of the contract, but that it is the duty of the court to reach the real intention of the parties and declare the relationship.—Chickering v. Bastress, 130 Ill 206,
In this latter case it is said in the opinion that “calling profits ‘commissions’ does not change their character.”
Mr. Mechem (volume 1, § 43) thus distinguishes a ■sale from agency to sell in these words: “The essence
While, in the instant case, a portion of the contract has the words “sell on commission” and the word “consignment” Written thereon, yet other portion (memorandum of shipment and invoice, etc.) make use of the words “sold to” and agreement to “buy back,” and nothing is said as to the title to the seeds or that the retail merchant is in fact the agent of the wholesaler, and, from what is therein contained, it is difficult to determine the real intention of the parties. The agreed statement of facts, however, contains the method of business, the course of dealing in reference to such transactions, and from such agreement it is disсlosed that the retail merchant acquires complete dominion and control of the seeds, malees sales to whom he pleases at his own prices and on whatever terms he pleases, and makes no accounting whatever to the wholesaler. Indeed, from the agreed statement of facts it appears tlie retailer deals with the seed as his own. He need not sell at all, but may give away the seed or use them himself. He is to account to the wholesaler for the seed not returned
Under the agreed statement of facts as shown by the record, guided by the rules of law as found in the foregoing authorities, we think it quite clear that the retailer was not a mere agent but was in fact a purchaser of seeds. It is shown that the retailer had the right to return the unsold seeds, and that the wholesaler agreed to buy them baсk at invoice prices. What, then, is the relation between the parties?
In the case of Allen, Bethune & Co. v. Maury & Co.,
The case of Robinson & Ledyard v. Fairbanks & Co.,
See, also, Foley v. Felrath,
“A contract of this nature constitutes usually a present sale, subject to be defeated by a condition subsequent until return; therefore the title is in the vendee.” Mechem on Sales, vol. 1, § 677.
“A contract ‘on sale or return’ is an agreement by which goods are delivered by a wholesale dealer to' a retail dealer, to be paid for at a certain rate, if sold again by the latter, and, if not sold, to be returned.”— Story on the Law of Sales, § 249.
Speaking to the same subject, the court in the case of House v. Beak,
We are of the opinion that the real transaction between D. M. Ferry & Co. and the retail merchants, under the agreed statements of facts, was that of “sale or return,” as disclosed by these authorities and definitions. The retailer was to pay for the seeds not returned at a certam price previously fixed by the parties, and at a certam time (that is, when the “traveler calls”), and he had the option of returning seеds not sold. We deem a further discussion unnecessary, and indeed recognize that this opinion is doubtless of undue length, but we trust pardonable on account of the importance of the principles involved.
We have examined the cases relied upon by counsel for appellee (Fleet v. Hertz,
The court below erred in giving the affirmative charge for the defendant and in refusing that asked by the plaintiff. The judgment of the circuit court is therefore reversed, and, as the cause was tried upon an agreed statement of facts, one will be here rendered in favor of the plaintiff, for the sum sued for.
Reversed and rendered.