221 F. 597 | 9th Cir. | 1915
(after stating the facts as above). It is the contention of the appellee that where goods are delivered by a manufacturer to a seller, and the latter is allowed to place them with his stock of goods, and sell and dispose of them in the ordinary course of business, to manage and control them as other goods, and where he pays all the taxes, cartage, storehouse charges, and all other expenses in connection therewith, and agrees to pay for such goods so disposed of, and there is neither an agreement to return the goods nor an agreement to account for the proceeds of the sale of goods as such, there is no bailment. To sustain that contention, the case particularly relied upon is In re Penny & Anderson (D. C.) 176 Fed. 141. That was a case in which the claimants had delivered to the bankrupts, who were conducting a restaurant, a stock of wines and liquors under an agreement called a “memorandum of consignment,” which contained an invoice of the liquors and the prices' thereof, and provided that they should be considered as delivered on consignment, and should remain the property of the claimants until the full in
Substantially different is the contract in the case at bar. To ascertain the intention of that contract, all of its terms should be considered in their relation one to another. The instrument is entitled “Appointment of Agent.” It makes the Andrus Company “agent to sell,” and the agent expressly accepts the appointment. It provides that the manufacturer shall maintain a stock of lamps in the custody of the agent; that the quantity of lamps and the length of time they shall remain in stock shall be determined by the manufacturer;. that all the lamps shall be and remain the property of the manufacturer 'until sold; that the proceeds of all lamps sold shall be held for the benefit and for the account of the manufacturer; that the agent shall return to ibe manufacturer at any time, if directed, any and all lamps unsold. The agent is required to sell at prices and on terms fixed by the manufacturer, and on all bills and invoices for lamps sold he is required to state that he sells as agent. The agent guarantees to the manufacturer that all lamps sold by it will be paid for. These provisions. so far as they go, all clearly and unequivocally mark the contract as a contract strictly of agency.
We will briefly consider the provisions therein that are said to indicate a contrary intention. Those provisions are the agent’s assumption of liability for loss, and for the payment of certain expenses, and for insurance. Such provisions do not change a contract of agency into a contract of sale. Nor was the contract rendered a contract of sale by reason of the fact that it contained no provision that the agent should keep the money separate and apart from ils other moneys, or that it should turn over the money received from the sale to the manufacturer, but instead was to pay for the lamps sold each month, less 29 per cent, for making the sales. Eilers Music House v. Fairbanks (Wash.) 141 Pac. 885. In Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093, the court said:
“A bailee may, however, enlarge lús lega] responsibilities by contract, express or J'atrly implied, and render himself liable lor the loss or destruction of the goods committed to his care; the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.”
In Re Flanders, 134 Fed. 560, 67 C. C. A. 484, the court said:
“The objections that ordinary invoices accompanied the shipments, that such shipments were made direct to Inlanders, that the leather was sold by him in*602 his own name, that he allowed credit upon sales, that he guaranteed sales, and that he insured in his own name, do not change the nature of the transaction.”
In Re Columbus Buggy Co., 143 Fed. 859, 74 C. C. A. 611, it was held that a contract between a furnisher of goods and. the receiver, that the latter may sell, and at such prices as he chooses, that he will account and pay for the goods sold at agreed prices, that he will bear the expenses of insurance, freight, storage, and handling, and that he will hold the merchandise unsold subject to the order of the furnisher, discloses only an agreement of bailment for sale, and does not evidence a conditional sale.
In John Deere Plow Co. v. McDavid, 137 Fed. 802, 70 C. C. A. 422, the court gave similar construction to a contract containing like provisions.
Of similar import are In re Pierce, 157 Fed. 757, 85 C. C. A. 14, and Franklin v. Stoughton Wagon Co., 168 Fed. 857, 94 C. C. A. 269.
We do not find that the appellee’s contention is sustainable either upon reason or authority. To constitute a sale, there must have been in the contract a vendor and a vendee, and a provision for a transfer of property by the vendor to the vendee, and an obligation by the vendee to pay an agreed price therefor. Or the circumstances outside of the contract must have been such as to show that it was the intention of the parties to make of the contract a fraudulent concealment of an actual sale. There are no such circumstances here. The stipulated facts do not in any way impeach the bona fides of the contract itself. In Ludvigh v. Am, Woolen Co., 231 U. S. 522, 34 Sup. Ct. 161, 58 L. Ed. 345, the court held that a contract under which goods were delivered by one party to another to be sold by the latter, and the proceeds paid to the former, less an agreed discount, the unsold goods to be returned to the consignor, was really a contract of bailment only, and that the consignor can, in the absence of fraud, take them back in case of the consignee’s bankruptcy, unless there were other circumstances controlling the situation, and establishing that the contract was a mere cover, for a fraudulent or illegal purpose.
The judgment is reversed, and the cause is remanded to the court below, with instructions to enter a judgment for the appellant.