102 Iowa 31 | Iowa | 1897
— Appellee is a wholesale dealer in farm machinery at the city of Dubuque; and, at the time of the happening of .the matters in controversy, Bush was a retail dealer in the same line of goods at Mason City. Bush had been buying goods of the appellee, in the regular way, for some fifteen years prior to 1893. In this last-named year he became insolvent, and a new arrangement was made between the parties-, by written contract, to which reference will hereafter be made. The notes in controversy were taken by Bush during the year 1894. No written contract was made for that year, but the understanding was (to quote the language of appellee’s agent), “that the same deal we had in 1893 should prevail in 1894.” Bush also says that this was the arrangement. The written contract consists of two parts, the material parts of which are as follows: It first recites that appellee gives Bush the privilege of selling goods to the trade tributary to Mason City, and Bush agrees to do all the business pertaining to the sale of the goods, pay freight and charges against them, keep the same insured, pay taxes, keep them well housed and in good order, free of charge, and until sold or disposed of by order of first party. The next provision is an agreement on the
This, in substance, is all the evidence upon which the case was decided, and appellant insists that the court erred in construing -the contract to be one of bailment, and not of sale. This presents the principal question in the case, and to this claim we now turn our attention. It may be that the parties intended this to be a contract of agency, and not of sale; but their agreements, whatever-the intention, were merged in the written instruments to which we have referred, and their respective rights and liabilities must be determined by reference to this contract, construed in the light’ of the surrounding circumstances. Appellant says that the rule by which to determine whether .a contract is one of bailment or sale is this: “That if the identical thing is to be returned, even in an altered form, it is a bailment; but if the receiver is at liberty to return another thing, whether in the same or a different form, or to pay money at his option, it is a sale.” This is the rule sometimes given in the books. Vide Brown, Bailm., p. 3; Benjamin, Sales (6th Ed.), p. 5; Wright v. Barnard, 89 Iowa, 166 (56 N. W. Rep. 424). And the supreme court of Illinois adopted this test in a case quite like the one at bar. See Chickering v. Bastress, 130 Ill. 206 (22 N. E. Rep. 542). Now, while this te¡3t is no doubt a good one in a certain class of cases, yet it is by no means certain in a case of this character. If this were the rule, it would do away with all that kind of bailments known as “consignments for sale,” because there is no obligation in such a case to return the specific article, but
Great difficulty arises in applying these rules, and, as a consequence, there are numerous and conflicting decisions upon the subject. We will not undertake to review any considerable number of them, but will content ourselves with an effort to apply the principles above announced to the facts disclosed by this record. The contract, instead of being plain and simple, is long, indefinite, and somewhat obscure. It gives Bush the privilege of selling appellee’s goods in a certain territory, provides that he shall obtain settlement for all goods at'time of delivery, either in cash or notes (notes
One clause of this contract is almost identical with that construed in the case of Plow Co. v. Braden, 71 Iowa, 141 (82 N. W. Rep. 247). We held the contract in that case to be one of conditional sale, and not a bailment. See, also, Wright v. Barnard, supra; Chickering v. Bastress, 180 Ill. 206 (22 N. E. Rep. 542); Machine Co. v. Holcomb, 40 Iowa, 38; Manufacturing Co. v. Johnson, 97 Mich. 31 (56 N. W. Rep. 932); Mack v. Tobacco Co. (Neb.) 67 N. W. Rep. 174; Kellam v. Brown, 112 N. C. 451 (17 S. E. Rep. 416); Manufacturing Co. v. Lyons, 153 Ill. 427 (38 N. E. Rep. 661). Appellee relies upon the cases of Budlong v. Cottrell, 64 Iowa, 234 (20 N. W. Rep. 166); Conable v. Lynch, 45 Iowa, 84, and Bayliss v. Davis, 47 Iowa, 340. The first
Appellee insists that, as the case was tried to the court below as an action at law, we cannot interfere with its finding on questions of fact. Ordinarily this is true. But the construction of the contract was a question of law for the court, reviewable upon error; and not of fact, where all presumptions are in favor of the result reached. The contract is, it seems to us, one of sale, and not of bailment, although there is much language tending to show a “consignment for sale.” But taking the instrument as a whole, and reading it in the light of the interpretation put upon it by the parties themselves, we think it -clearly contemplates a delivery of the goods to the consignee, with a promise on his part to'pay for them at certain fixed prices from any funds which he might see fit to use for that purpose.
It is unnecessary, in view of the conclusions reached, to pass upon appellant’s claim of fraud in the transaction, although we may observe in passing that the obscurity of the language used may be attributed to a desire to mystify and perplex, so that appellee might call it a contract of agency or sale, as the circumstances seemed to demand.
Appellee appeals from an order of the court taxing-certain costs to it. A decision of this question is uncalled for, in view of the conclusion reached in the former part of this opinion. For error in construing the contract, the judgment of the lower court is REVERSED.