Lead Opinion
delivered the opinion of the court:
The appellant brought a replevin suit against the sheriff of Cook county to replevin a lot of furs. He executed a replevin bond to the coroner of the county in the sum of $7000, obtained a writ of replevin, by virtue whereof the furs were taken by the coroner and delivered to him. The replevin suit was dismissed, and this an action of debt was instituted in the circuit court of Cook county against the appellant, and one Lehman, as surety, on the replevin bond in the name of the appellee Hertz, the coroner, for the use of James H. Gilbert, the sheriff of said county, from whose possession the furs were taken by the coroner. The appellant, among other pleas to the declaration in the action of debt on the bond, pleaded that the merits of the controversy as to the ownership of the furs was not determined in the replevin suit, and that the title thereto and ownership were in him. Replications filed to this plea averred that the furs in question were levied upon by the said sheriff to satisfy certain executions against S. A. Kessler and Isadore Kolb, co-partnerS under the name and style of the S. A. Kessler Fur Company; that said furs were not the property of said appellant, but belonged to the S. A. Kessler Fur Company. Upon the hearing before the court and the jury, the court instructed the jury that it appeared from the evidence in the case, as matter of law, that the said Kessler Fur Company was the owner of the furs, and that the only question of fact to be determined by the jury was as to the damages that the plaintiff should recover. The jury returned a verdict against the appellant in debt in the sum of $7000, (the penalty of the bond,) to be discharged upon payment of damages assessed at $2248.93. Judgment was rendered upon this verdict, and on an appeal - prosecuted by the appellant alone, said Lehman not joining therein, the same was affirmed by the Appellate Court for the First District, on appeal. The appellant has prosecuted this his further appeal to reverse the judgment of affirmance. ■
In the year 1892 the appellant was an importer and wholesale dealer in furs in the city of New York, and had been engaged in that business in that city for some years prior thereto. The said S. A. Kessler Fur Company, a co-partnership, was engaged in the business of manufacturing furs into garments, rugs, etc., and in selling such manufactured articles and furs at wholesale and retail, in the city of Chicago. From two to four years prior to the year 1892 the appellant had sold furs in the amount of from $200 to $400 per year to the Kessler Fur Company, on credit. In March, 1892, the fur company was indebted to appellant in a certain sum, for which he held the notes of the company. Appellant regarded the fur company as financially weak. On the 80th day of March, 1892, the appellant addressed to the fur company a letter, to which the fur company replied under date of April 2, 1892. These two letters constitute the contract under which the appellant shipped from New York to Chicago the furs which he subsequently replevied from the sheriff. The circuit court construed these letters to constitute sales of the furs. The contention of the appellant is that the contract evidenced by these letters was a consignment of furs for sale, and that the ownership of the furs remained in him. The letters are as follows:
“No. 92 Gold Street.
William H. Fleet, Broker.
Furs, Fancy Skins, Goat Rugs, Robes, etc. Skins Dressed, Mounted and Lined. Cable Address, ‘Vasjutly.’ (Dictated.) New York, March SO, 1892.
“S.A. Kessler, Esq., Chicago, Ill.:
“Dear Sir—Your favor of the 25th inst. has been duly received, and enclosed check for $160 I passed, with thanks, to your credit, against your note, which annexed I beg to return to you. For remaining 64 cents I beg you kindly to remit to me at next opportunity by mail.
“I cannot fill an order for 100 goat rugs at less than $2.50, and the best goods, dyed black, are $2.75, at which price I am selling thousands of them here. In fancy color goats I am not ready yet to offer my new colors. I have large quantities of goods such as the fur manufacturers here are buying, and I have no, doubt that I have many bargains for you, and I try to fix matters so that I could ship you a great deal of stuff. Most of these goods, as you know, I am selling for a/c for other people, and as the mercantile agencies do not rate you very high I cannot sell you the same outright, and guaranteeing to my fellows for the very small commission I get, that would not pay. My desire is to help you all I can do, as I assured you on former occasions. As I am now very anxious to help you, I will do this: I consign to you a $1000 worth of goods, which you agree to handle for my account and hold the proceeds in trust, making settlement within 30, 60 or 90 days, as soon as the money may be collected. Now, I am sure that this mus^ be satisfactory to you, and you mig'ht send in your orders for the following goods:
Belgium Coney, red label, case lots.
Assorted 25 x x 50 x x x 25 x XXX $2 20 25 x x dto black label c lots 50 x x x ■ 2 35 25 x x x x 24 x x dto blue “ “ 50 x x x 3 50 25 x x x x Chinchilla Hares, same as had, 5 00 Silver Babbits, medium quality, 2 75 Terms on above goods: On all money remitted within 30 days, 6% off, 60 days 5% off, 90 days 4% off. 1 Seal, Copper Island, $25 00 and upward. Thibet crosses, 15 00 (< Angora Goat, Turk, skins, 6 50 Cape Angora, 3 50 a Goat Bugs, $2.50, $2.75 of black.
(Reefer) Reefer stock.
“These later articles all net 30, 60 or 90 days, as you might collect the money. If you want anything else let me know. Now send some orders along. Very truly,
Wm. H. Fleet.”
“S. A. Kessler, Supt. Isidore Kolb, Manager.
S. A. Kessler Fur Co.
155 & 157 Washington Street, Opposite Chicago Herald. Cash paid for raw furs and fur cuttings.
Telephone No. - Eemoved to 231 Jackson St.
Chicago, April 2,1892.
“Dear Friend Fleet—Yours of the 30th at hand. Inclosed please find 64c. postage stamps, amount due you on the note. Your proposition of handling your goods on consignment is perfectly satisfactory to us. I am glad you have found a way of doing business with us on safe basis, which I trust will be satisfactory to both. I am only sorry that we had not made these arrangements while I was in your city, for we have used at least $10,000 worth of goods since, and a great many of these goods could have been bought of you, but being in the position we are in at present we had to buy from different houses the goods we had orders on, at terms suitable. I have often thought of writing to you for certain goods, but I have not had enough nerve to do it, as I thought our limit with you is full. Now, Mr. Fleet, I will try and do business with you satisfactory to you, and will show you that I appreciate your favors in every way. Please send us by U. S. Express following goods: 100 goat rugs, $2.50; 100 doz. Belgium coney, red label, $2.20; 50 astrachan plates, if you have any in stock, at $4.50. We also like to get 50 doz. of J. K. lynx hare at $5.25. A sample of silver rabbits and samples of all light colors goats. If you have tiger cats, please send us all you have dressed, not exceeding 100 skins. Kindly try and keep ús posted on everything new that you may get, as we have the trade and can always place it into the market. In regards to money matters, I wish to say to you that all the notes you have of us will be honored promptly, and we shall remit you as fast as we realize from your goods we may order, which shall at no time exceed the terms mentioned in your letter.
“Trusting to see you in your city next month, I remain, “Yours very truly,
S. A. Kessler Fur Co.,
pr. S. A. Kessler ”
Fleet began shipping goods to Kessler under the arrangement set forth in these letters, the first shipments being on April 6 and 7,1892, and accompanied by invoices, in all of which the goods are described as consignments. Numerous letters passed between appellant and the fur company between April 2, 1892, and August 18, 1892, on which latter day the ^ur company failed and was closed up under executions upon judgments confessed by it. The correspondence thus had between the parties, as embodied in their letters to each other, was all introduced in evidence, and is s.et out in full in the abstract. During the months of April, May, June and July, 1892, and upon the 6th and 9th days of August, 1892, merchandise, aggregating in value a total of §4812.18, was shipped by Fleet to the fur company, and, as is claimed by the appellant, under the arrangement contained in the letters of March 30 and April 2, 1892. On each day when a shipment of good$ was made by appellant to the fur company, appellant would'send to the fur company an invoice entitled as follows:
“New York, (giving the date.)
Messrs. S. A. Kessler Fur Co., 231 Jackson St., Chicago, Ill.
To William H. Fleet, Dr., No. 92 Gold St.”
Under the head of “terms” in the first shipment are the following words: “Goods to be sold for my account, proceeds to be held in trust and turned over to me within thirty, sixty or ninety days.” With each invoice Fleet would send a receipt to be signed by the fur' company, of which the following is a sample:
“Chicago, Ill., April 7, 1892.
CONTRACT.
“Received from Wm. H. Fleet, one hundred (100) goat rugs, fifty dozen lynx hares, one hundred (100) dozen coney red 1, fifty (50) tiger cats, wjiich we agree to offer and to sell for his account at the net amount of eight hundred and seven 50-100 ($807.50-100) dollars, and remit the same within 30, 60 or 90 days as soon as goods are sold. g. A. Kessler Fur Co.”
The last shipment of the furs was made on the ninth day of August, 1892. _ On the 18th day of August of the same year the fur company confessed four judgments in the superior court of Cook county, and the furs so shipped by the appellant to the fur company, remaining unsold, were levied upon by executions issued upon said judgments. The appellant replevied all the furs thus levied on which were in the same condition as when shipped by him to the fur company.
We think the circuit court erred in construing the agreement under which the appellant shipped the furs to the fur company to be a sale of the goods to the fur company. An examination of the two letters which constituted the agreement into which the parties entered, will disclose, among other things, that the fur company did not become indebted in any way to the appellant on the shipment of the furs by the appellant or on the receipt, of them by the fur company. The only, liability which could arise against the fur company was to a liability to pay to the appellant the amount fixed upon by the appellant as the price to him of the furs when they should sell the furs and collect the money therefor. The agreement, as shown by the letter of the-appellant, authorized the fur company to sell the furs for cash, or on thirty, sixty or ninety days’ time, in the discretion of the company, and required the fur company to remit for all sales as they should collect the money, and as an inducement to the fur company to make sales for cash or on the shortest possible time of payment, allowed them a reduction from the prices fixed by the appellant, of six per cent on all sums collected and remitted within thirty da)rs, five per cent upon all sums collected and remitted within sixty days, and four per cent on all sums collected and remitted within ninety days. The clear intent of the appellant, as indicated.in the letter of March 30, 1892, is, not to sell any more goods to the fur company, but to offer to supply the fur company with goods to be sold by the company as his agent, and to account to him only for such goods shipped to the company as they should be able to sell and collect the money for. The express words of the letter are, that the fur company shall “handle (the furs) for my account and hold the proceeds in trust, making settlements within thirty, sixty or ninety days, as soon as the monejr is collected.” Under the terms of this letter the fur company was authorized to sell the furs to their customers on terms of credit not exceeding ninety days, using their best judgment as to the solvency of such customers, and becoming liable to the appellant to hold the proceeds of such sales in trust for him and pay over the same when collected. The intent disclosed is, not to sell furs to the fur company and to create the relation of debtor and creditor between the appellant and the fur company for the furs to be so shipped to them, but only to place in the possession of the fur company, as the agent of the appellant, furs to be sold by them and accounted for only if sold and the money therefor collected. There is not to be found in the letter any provision whereby the fur company could, at any time or in any manner, become the owner of the furs in question. Power in the fur company to sell, as agent, is given, but power to become the owner is not provided for by any of the provisions of the letter. The transaction was not a contract of sale with option to the buyer “to return” the article sold at a fixed time or within a reasonable time, nor a sale with retention of title in the seller until the purchase price should be paid, or an absolute sale. The relation which was created between the appellant and the fur company was not that of vendor and vendee, but of principal and agent.
The appellant could not have successfully maintained an action against the fur company to recover a judgment for the amount of the invoices of goods shipped under the terms and conditions of this letter. He might have maintained an action at law to recover judgment for the amount of any sale of goods made and collected by the fur company and not remitted in accordance with the terms and conditions of the letter. If the furs had been 1 destroyed or damaged while in transit from New York to Chicago the loss would have fallen on the appellant; and the same would have been true if any of the furs had been lost or destroyed while in the possession of the fur company, unless liability to respond for such loss or damage could be predicated upon negligence, or on some ground of recovery not arising out of-the terms and conditions of the contract made by the "letters. No price was fixed at which the fur companjr should sell the furs, but a price was fixed at which they should account to the appellant, as principal, for all good? which should be sold and the proceeds of such sale collected by the fur company. The price so fixed was to be “net” to the appellant, which would require the dur company to defray the expense of transporting the furs from New York and of transacting the business in Chicago. The fur company was to look for their compensation to such excess in the price they might be able to obtain over the amount they were required to account for and pay over to the appellant. The same conditions, in effect, were in the contract involved in Lenz v. Harrison,
The provision in the letter that the fur company shall “hold the proceeds in trust, making settlement in thirty, sixty or ninety days,” does not mean the entire amopnt received on the sale of an article should be held in trust, but only the “proceeds” which, under the contract, should be paid by the fur company to the appellant. The transactions contemplated by this letter were not either absolute or conditional sales of the furs by" the appellant to the fur company, or sales with an option to return the goods, but consignments of goods by the appellant to the fur company to be sold for the account of the appellant. The appellant could not, of course, recover furs from a tona fide purchaser from the fur company, for he had authorized the company, as his agent, to sell the furs. Property of the principal in the hands of the agent for the purposes of the agency is not subject to levy and sale on an execution against the agent. (11 Am. & Eng. Ency. of Law,—2d ed.—p. 625.) Where the owner, with the intention of sale, has placed the possession in the vendor and clothed the vendor with the indicia of ownership, a different rule applies. But in the case at bar there was no intention of sale. Whether the appellant could lawfully recover furs which had been or might be manufactured into garments, rugs, etc., such garments, rugs, etc., not being sold, need not be here discussed, for the articles replevied were such, only,'as were in the same condition as when shipped to the fur company.
The fact the fur company did not account for the furs sold as they collected the money therefor, and that the appellant .accepted some notes given by customers of the fur company to them in payment for goods other than those furnished by the appellant to be sold, could have no effect to overcome the terms and conditions .of the agreement between the parties and convert the agency into a bargain and sale. The record discloses that the appellant frequently demanded prompt payment of all amounts collected from the sales of his goods, and only accepted the notes referred to because he could not get payments in cash for goods of his which he insisted in his letters in response to which the notes were"sent to him, to use his own words, “you must have sold and have the money for it before this, and under these circumstances I want you to remit right away.”
A careful reading of the correspondence does not indicate that the appellant or the'fur company regarded the transactions between them to be sales of the furs to the company. It is true, that after repeatedly asking for remittances for amounts which he insisted the company must have received from the sales of his goods, and after taking the notes before referred to, and being repeatedly disappointed by the failure of the fur company to make remittances in response to. his letters, appellant made a full statement of all the shipments and of thé credits and insisted upon settlement, but nothing said indicates that he intended to demand any payment except áuch as should be due under the terms and conditions of his contract as he construed the contract, viz., that he was entitled to demand the amounts collected on sales made by the fur company.
The contract between the appellant and the fur company was not for the purpose of giving the appellant a lien on the furs to secure the purchase price thereof, for the reason, among others, there "was no liability on the part of the fur company to pay anything whatever as purchasers of furs. The appellant did not sell the furs to the fur company, but only supplied them with goods to be sold “on his account,” and no debt against the fur company for the furs existed to be secured to him.
We have examined the authorities cited'by counsel for the appellee and find none, of them at variance with' this view of the case. In Jennings v. Gage,
In Brundage v. Camp,
In Murch v. Wright,
In Lonergan v. Stewart,
In Michigan Central Railroad Co. v. Phillips,
VanDuzor v. Allen,
In House v. Beak,
In Chickering v. Bastress,
In the case at bar the fur company executed no promissory notes for the furs sent to them, and became in no manner indebted to the appellant by reason of the shipment of any invoice of such articles to them. The agreement between the appellant and the fur company, according to the terms and conditions of the letters between them, does not differ in any material respect from innumerable ordinary contracts of agency entered into between principals and their agents, factors or commission merchants. In Peoria Manf. Co. v. Lyons,
In Lenz v. Harrison,
The case at bar and- that presented to the court in Lenz v. Harrison, supra, are not different in any controlling aspect. The circuit court erred in the construction given to the letters which constitute the contract between the appellánt and the fur company.
A question not touched upon may again arise upon a re-trial of the cause, and must therefore be determined. The affidavit, writ and bond in the replevin suit became lost prior to the dismissal' of that cause in the circuit court. The appellant notified the court that such files were lost, and asked leave to substitute true copies of the affidavit, writ and bond, to be received in' lieu of the originals. Leave was granted and the appellant filed copies, and these copies stood as the originals in that court. The copy of the bond so filed by the appellant was produced in evidence on the hearing of the case at bar. He cannot be permitted to complain that the court, in the case at bar, received and treated the copy as competent evidence against him. The surety on the bond , has not joined in this appeal and does not object to the action of the court..
Jurisdiction, to entertain suits on lost instruments under seal have been entertained by equity courts from an early day. Jurisdiction in equity attached because it was the doctrine of the common law that an action at law could not be maintained on a lost bond, because there could be no proferí of the lost instrument, without which the declaration would be defective. Section 19 of the Practice act rendered it unnecessary to make proferí of the instrument sued upon, and though a court of equity may still exercise the jurisdiction assumed by those courts while proferí was necessary in an action at law, still the effect of the statute was to remove every, obstacle to the prosecution of such suits in courts of law.
The judgment of the Appellate Court and that of the circuit court are each reversed, and the cause will be remanded to the circuit court for further proceedings in conformity with this opinion.
Reversed and remanded.
Dissenting Opinion
dissenting:
I do not concur in this decision, or in the reasoning of the opinion, for the following" reasons:
The main contention made by the appellant relates to the character of the arrangement, embodied in the letters of March 30, 1892, and April 2, 1892.
The appellant claims, that the transaction between Fleet and the S. A. Kessler Fur Company was a consignment, and not a sale, and that, therefore, the title to the goods remained in Fleet, so as to justify his replevin of them. On the other hand, it is claimed by appellee, representing the creditors of the fur company, and prosecuting this action in their interest, that the transaction between Fleet and the fur company was a sale, and not a consignment, and that the title to the g'oods was thereafter vested in the execution debtor at the time they were taken upon execution by the sheriff. The material question in the case, therefore, growing out of the instructions given by the court, is whether the arrangement in question was a consignment, or a sale.
Whether the arrangement between Fleet and the fur company was a contract of bailment, or an arrangement for the sale of goods under the device of a consignment for sale, is a question of law to be determined by the court upon a construction of the letters of March 30,1892, and April 2,1892, giving due weight to all the provisions thereof with the view of finding out what was the real intention of the parties. (Chickering v. Bastress,
The correspondence, which took place between Fleet and the fur company after the arrangement was entered into, and the course of business, as conducted between them in the shipment of the goods and in the sending of statements and invoices, are acts on their part, indicating the construction placed by themselves upon the writ- • ten agreement embodied in the original letters. (Street v. Chicago Wharfing Co.
In determining the meahing of the agreement from the language used in it, and from the acts of the parties done under it, it is to be remembered that the policy of the law in Illinois does not permit the owner of personal property to sell it either absolutely or conditionally, and still continue in the possession of it. Possession is one of the strongest evidences of title to this class of property. In Hervey v. Rhode Island Locomotive Works,
It is also to be noted that, if the real purpose of the agreement is to cover up a sale and preserve a lien in the vendor for the price of the goods, it makes no difference that the transaction is called, or is designated upon its face, a consignment for sale. (Ex parte White, L. R. 6 Ch. App. 400; Chickering v. Bastress, supra; Hervey v. Rhode Island, Locomotive Works, supra). In the latter case it is said: “In determining the real character of a contract, courts will always look to its purpose, rather than to the name given to it by the parties.” (See also Jennings v. Gage,
If the arrangement between appellant and the fur company be examined in the light of the principles thus announced, it cannot be construed otherwise than as a scheme for the sale of goods upon credit by Fleet to the fur company. The designation of the transaction as a consignment of goods to be sold was merely a device to cover up its real character.
Before March 30, 1892, the fur company had been engaged in the manufacture of furs in Chicago, and Fleet had sold them goods upon credit. The fur company had become his debtor for goods so sold, and had executed notes to him, which he held against them at that time. All this is shown upon the face of the letter of March 30, 1892. It also appears upon the face of that letter,-that Fleet was unwilling any longer to continue the mode of doing business, which had theretofore existed between them. He tells Kessler of the fur company in that letter, that the mercantile agencies do not rate the fur company “very high.” It was his own opinion, that the sale of goods to the fur company was a risky business in view of the fact that its financial standing was not good. He, therefore, says that he will try to fix matters, so that he can ship the company “a great deal of stuff." The new arrangement, which he proposes to make, grows out of the fact stated by him, that he “cannot sell you the same (goods) outright.” The new arrangement was based upon the consideration, that the fur company was weak financially, and that it was not safe to' sell them godds “outright.” The plain inference is, that the matter should be so fixed, as to sell them goods, but so as not to make the sales thereof “outright.” The same circumstances, which exist in the case at bar, existed in the case of Chickering v. Bastress, supra, namely, that there had been previous business transactions between the parties making" the consignment arrangement, and that, in the conduct of such previous business, the relation of seller and purchaser had existed between them. Here, it is evident that the new arrangement-was merely for the purpose of avoiding the risks, which were likely to grow out of such relation of seller and purchaser.
By the terms of the letter of March 30, 1892, Fleet was to consign to the fur company goods, “which you agree to handle for my account and hold the proceeds in trust, making settlement within 30, 60 or 90 days, as soon as the money may be collected.” He then tells Kessler that he is sure that this will be satisfactory to him, and requests him to send in his order for certain goods. He proposes that, as to some of these goods, the terms shall be, “on all money remitted within 30 days, 6% off, 60 days, 5% off, 90 days, 4% off.” As to other goods mentioned, and whose prices are fixed, he says, “These later articles all net, 30, 60 or 90 days, as you might collect the money.” It is to be observed that the company is not to hold the goods shipped in trust for Fleet, but only the proceeds. Settlement is to be made by the company with Fleet within thirty, sixty or ninety days “as soon as the money may be collected.” This does not mean, as is claimed by counsel for appellant, that the fur company is to sell the goods upon a credit of thirty, sixty or ninety dáys, but it means that the fur company, as between itself and Fleet, is to have a credit of thirty, sixty or ninety days, and shall remit the money, or make settlement, within thirty days if the money is collected within thirty days, or sixty days if collected within sixty days,, or ninety days if collected within ninety days. The discount, which is to be allowed on all money remitted, is a discount to be allowed the fur company, and not a discount to be allowed to the purchasers from the fur company. In the letter of March 30, 1892, and in the letter of April 2,1892, no provision of any kind is made, indicating that the relation of vendor and vendee is to exist between Fleet and the purchasers from the fur company. The fur company is to take the goods from Fleet at the prices fixed in the invoices or statements of shipment, accompanying the letters, which-passed between the parties. There is no direction in the original letters constituting the contract, or in any' of the letters subsequently written by Fleet, which fixes the prices at which the fur company is to sell the goods, or which fixes any terms or conditions, upon which the fu^ company is to dispose of the g'oods. It is left to the fur company itself to sell the g'oods upon whatever terms it chooses to fix. There is no provision in the contract, or in the letters embodying the contract, which imposes any obligation upon the fur company to return any of the goods shipped to them in case of failure to sell within thirty., sixty or ninety days, or any other.time. The features thus alluded to have been commented upon in many icases, as indicating that the intention of the parties to the arrangement made was to constitute between themselves the relation of vendor and purchaser, and not that merely of consignor and consignee for the purpose of' sale by the latter for the former. There is no provision made in the contract as to the party who shall bear the expenses of the shipments and sales, such as freight, storage and insurance. On the contrary, it appears that all of these expenses were to be borne by the fur company, and not by Fleet. It is furthermore to be noted that no provision is made in the contract for the compensation to be received by the fur company for selling Fleet’s goods, if they were to sell such goods as his agents. Nothing is said therein about commissions upon the sales. There is no provision, that the fur company is to retain all of the proceeds of the sales to be made by them, over and above the prices fixed in the invoices or statements sent with the letters.
The features of this transaction, which have been thus mentioned, have been found to exist in many transactions declared by the courts to constitute sales, and not consignments. In Chickering v. Bastress, supra, it was said that the agreement there under consideration was not a contract of bailment, and that the provisions authorizing the purchasers, or alleged consignees, “to determine solely for themselves at what prices they would sell the pianos from their store, is almost conclusive that in reality they were not acting as the agents or factors of the Cliickerings; but that, with the further provision that they were to bear as their proper burden all the expenses of shipment, etc., the same, precisely, as purchasers, would leave no doubt that the contract was not one of bailment, or of principal and factor.”
In Lonergan v. Stewart, supra, this court, speaking through the late Justice Breese, said: “When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed, but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing.of equal value, he becomes a debtor to make the return, and the title to the property is changed—it is a sale.” This same language is used in Chickering v. Bastress, supra, with the addition of the words, “or the money value,” after the words, “another thing of equal value.” In Lonergan v. Stewart, supra, where it was, held that there was a sale of the corn i'n controversy in that case, it was said by the court: “It was well understood by the parties to it, and it was their intention that the identical corn was not to be returned, but that it was to be shipped and sold by Bradt in the usual course of his business. This being so, Bradt became the owner of the corn, as all the authorities hold.” (See also Ex parte White, supra; Richardson v. Olmstead,
After repeated requests for the remission of money by Fleet, the fur Company, in a letter written to Fleet on May 28, 1892, sent him two notes aggregating $447.75. These notes were received by the fur company from their customers in payment of goods sold by the company, which were not received from the appellant, but from other parties than the appellant. These notes did not represent the proceeds of the sales of goods shipped to the fur company by Fleet, but they were the proceeds of the sales of goods with which Fleet had nothing to do. -In the correspondence Fleet is continually referring to the indebtedness, which exists from the fur company to him, although he knew at the time that the goods, representing" such indebtedness were still in the' possession of the fur company, and had not yet been sold by them. In a letter written.to Fleet on August 4, 1892, the fur company tells Fleet that it has in it-s possession “over $3000.00 worth of your goods on hand this day; all the hares, thibets, angoras and leopards cats bought of you are stock keepers, and they may not move for the next two months to come. * * * Now, Fleet, old boy, you need not worry for the amount of money due you, as we have sufficient, two dollars for every one we owe.” This letter not only refers to over $3000.00 worth of goods as having been bought by the fur company of Fleet, but it refers to money due from the company to him. Knowing, as Fleet* must have known, that the company had $3000.00 worth of his godds in their possession still unsold, he wrote to them in August, 1892, as follows: “You must send along a check for $400.00 to $500.00 as I must get some money out of this business with you. Already you owe me over $3000.00.” It is impossible to believe that the fur company were merely agents of Fleet to sell his goods, if they owed him for $3000.00 worth of goods which he had shipped to them, and which they still had in their possession, and which they had not yet sold. All the statements and invoices, which accompanied the letters, were prefaced at the top of each letter, above the description of the goods shipped, and their prices, with the following words: “S. A. Kessler Fur Go. to William H. Fleet, Dr.,” thus designating the fur company hs the debtor of Fleet.
The mere fact, that, by the terms of the arrangement, as embodied in the letters, the fur company -was to make settlements, or remit money, within thirty, sixty or ninety days “as soon as the money may be collected,” or “as soon as goods are sold,” does not necessarily imply a consignment, instead of a sale. The wholesale merchant, who ships goods to the retail merchant, expects the retail merchant to sell the goods to bis customers, and out of the proceeds of such sales to pay the wholesale merchant. Indeed, the retail merchant relies upon his business in making sales to realize the money to pay for the goods which he procures at wholesale. The mere fact, that the fur company was within a certain time to pay for the goods, shipped to it by Fleet, out of sales which it might make, is not a conclusive indication that they were receiving the goods upon, consignment for sale, rather than as purchasers. In several cases decided by this court, the fact, that the alleged consignee of goods was required by the contract to execute to the consignor notes for the purchase price of the g'oods so shipped, was held to indicate that the transaction was a sale, and not a consignment, upon the ground that the execution of such notes made the consignee a debtor directly to the consignor for the invoice price of the goods. Chickering v. Bastress, supra; Lenz v. Harrison,
After a careful consideration of the case, and of all the authorities referred to by counsel, I am of the opinion that the transaction here, under consideration was a sale, and not a consignment, and that the lower courts decided correctly in so holding and that their judgments ought to be. affirmed.