102 U.S. 235
SCOTUS
1880

Lead Opinion

Mr. Justice Strong

delivered the opinion-of the court.

The correct determination of this case depends altogether upon the .construction that must be given to .the • contract between the Jackson & Sharp' Company and the railroad company, against which the defendants below recovered their judgment and obtained-their execution. If that contract, was amere lease of the cars to the railroad company, or if it was only a conditional sale, which did not pass.the ownership until the condition should be performed, the property was not subject to levy and sale under execution at the' suit of the defendant against the company. But if, on the other hand, the title passed by the contract, and what was reserved by'the Jackson’ & Sharp Company was a lien or security for the payment of the price, or what is called sometimes a mortgage back to the vendors, the cars were subject to levy and sale as.the property of the railroad company.. The statute of the State of Missouri enacts that “ no mortgage or deed of trust of personal property shall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property 'be' delivered to ’ and retained by the mortgagee or cestui que trust, or unless the mortgage or deed of trust be acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are, by -law, directed to ..be acknowledged or proved and recorded.” 1 Wagn. Stat.,’ c. 35, art. 2, sect. 8. The plain purpose of this statute was to render secret "liens upon personal property ineffectual as against purchasers or' creditors. The property in this case^-was in the possession" of .the railroad company when the levy upon it was made’, and the contract under which the company held it was not recorded.

What, then* is the true construction ’ of the contract ? The *244answer to this question is not to be found in any name which .the parties may have given -to the instrument, and not alone in any particular provisions it contains, disconnected front all others, but in the ruling intention of the parties, gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account.

Though the contract industriously and repeatedly spoke of loaning the cars to the railroad company for hire, for four months, and delivering them for use for hire, it is manifest that no mere bailment for. hire was intended. No price for the hire was mentioned or alluded to, and in every bailment of letting for hire a price or compensation for the hire is essential. The amount may not be stipulated. It may be a. reasonable compensation or a quantum valebat, but the contract must contemplate payment for the use of the thing let or bailed. Not only was no such payment provided for or required, but all intention to demand it is negatived by the strongest implications. The manufacturing company exacted and took promissory notes for the entire selling price of the property, $6,138.40, and, in addition thereto, collaterals to a large amount to secure payment of the notes-. The aggregate of- the notes was equal to that price; two of them for $1,919.20 each, one payable at sixty days and the other at four months, bearing interest from their date at the rate of ten per cent; and the third note, at four months, being for $2,583, interest at that rate having been added to the principal sum. One of these notes fell due only nine days after the cars were delivered to the railroad company, and both the others before the expiration of four months from the date of the agreement. The notes were to be collected at maturity, and thus it was conte'mplated that before the end of four months the manufacturing company should have in hand in cash the full valué or price of the cars. It is needless to say that all this. ;is totally inconsistént with the idea that the parties intended a mere letting or. bailment for hire.

It appears equally clear to us that the contract was not one for a conditional sale. It is true it said the manufacturing company were to hold the three notes as collateral security, *245and collect the same at their maturity, and “hold the proceeds when collected for the safe custody and return to the party of the first part, when .demanded, of said passenger, mail,,baggage, and express cars, delivered to the party of the second part for the term of four months for hire,” “ the said party of'the second-part to have the right and privilege to purchase ” (the cars) “ at any time within the said period of four .months, upon payment to the party of the first part, in cash, the sum of $6,338.40, with interest at the rate of ten per cent from the date of the agreement until day of payment, but, until such payment is made in full, the said party of the second part shall have no right, title, claim, or interest in and to said'passenger and mail, baggage, and express cars, except as-to their use or hire, nor any fight or authority in any way to dispose of, hire, sell, mortgage, or. pledge the same, but that the said cars are and shall remain the property of the party of the first part, to be accounted for by the party of the second part to the party of the first par.t, and to be redelivered ,to the party of the first part, when demanded in default of the payment of the. aforesaid sum of $6,338.40, with interest as aforesaid, .hereinbefore described, anything to the contrary herein contained notwithstanding.”

- If this were all, it would necessarily be held that a conditional sale was intended. But it is not all. It' is quite unmeaning for parties to a contract to say it shall not amount to a sale, when it contains every element of a sale, and transmission of ownership. This,..part of the contract is to be construed in connection with the other provisions, so that if ■ possible, or so far as is possible, they all may harmonize. Thus construed, it is quite plain these stipulations were inserted to enable the manufacturing .company tó enforce payment, not. of any, rent or hire, but of .the- selling price of the cars for; which the company took the notes of the railroad company. They were intended as additional security for- the payment of- the debt the latter company assumed. This is shown most clearly by the other provisions of the contract. The notes became the absolute property of the vendors. As has been stated, they all fell due within four months, and it was expected they would be paid. The vendors were -expressly *246allowed to collect them at their maturity, and it was agreed that whatever sums should be collected on account of them should be retained by the vendors for their own use.

. No , part of the money was to be returned to the railroad company in any event, not even if the cars should be returned. On the contrary, it was stipulated expressly that if the manufacturing company should elect to take the cars into their own possession, which they reserved the right to do in case o'f default of payment of the notes, the property should be sold, and of the net amount realized from the sale, so much as should .be needed to make the amount remaining due and unpaid on' the promissory notes, with the interest that • might have accrued thereon, should be retained by the manufacturing company,' and the surplus, if any, should be paid over to the railroad company.

What was this but treating the notes given for the sum agreed .to be the price of the cars as a debt absolutely due to the .vendors ? What was it but treating the, cars as a security' for the debt? And why stipulate that the surplus which might be obtained from the sale of the cars, after taking them back, beyond what was needed to pay the unpaid part of the debt, should be paid over to the railroad company, if that company was not the owner of the cars, even while they were in the possession of the other company, and had not even then what may be called an equity of redemption ?

In view of these provisions, we can come to ho other conclusion than that it was the intention of the parties, manifested by the agreement, the ownership of the cars should pass at once to the railroad company in consideration of their becoming debtors for the price. Notwithstanding the efforts to cover up the heal nature of the contract, its substance was an hypothecation of the cars to secure a debt due to the vendors for the price of a sale. The railroad company was not. accorded an option to buy or not. They were bound to pay the price, either by paying their notes or surrendering the property to be sold in order to make payment. This was in no sense a conditional sale. This giving the property as a security for the payment of a debt is the very essence of a mortgage which has no existence in a case of' conditional sale.

*247- It may be added that tbe notes were given to tbe vendors before the cars were delivered. So, also, the collaterals for the notes were taken before the delivery ; and when they were taken, the president of the manufacturing company acknowledged he received them, not as additional security for the restoration of the cars at any time thereafter when demanded, but as security for the notes “given in payment” for the cars. This is confirmatory of the construction we have given to the contract. It tends to show that the transaction was a sale by which the ownership passed to the railroad company, the vendors retaining only a lien for the consideration.

It follows, from what we have said, that .to protect the cars from seizure and sale by virtue of executions against the railroad company, recording the contract was made necessary by the statutes of Missouri, to which' we have referred.

The judgment of the Circuit Court will, therefore, be reversed, and the record remitted with instructions to enter judgment, on the special finding of facts,, in fayor of the defendants below; and it is

So ordered.





Dissenting Opinion

Mr. Justice Bradley

dissenting.

I dissent from the judgment in this case. I think that, in the absence of express law to the contrary, not only has a man the right to make a conditional sale of his property, but that this right is not opposed to sound public policy, and should be fairly and liberally dealt with. The present case was, in my opinion, clearly a conditional' sale, and nothing else; and the owners of the property had a right to reclaim it on the terms contained in the agreement. These terms were fair and just ; not involving'any forfeiture, but.providing for a due allowance for every dollar paid, by requiring .a sale of. the property if the purchase should not go into effect.