Willis Norton & Co. v. Fisher, 113 Iowa 595

113 Iowa 595 | Iowa | 1901

Ladd, J.

That Fisher was the mere agent of the plaintiff for the sale of the flour within 90 days following the execution of the contract appears from Norton v. Melick, 97 Iowa, 564, but by the terms of the instrument the relation of the agent ceased at the end of that period, and he became purchaser of that which remained, though title was not to pass till payment. The most approved test to be applied to such contracts lies in ascertaining whether there was a promise to pay for the goods. If so, as a general rule the transaction will be declared a conditional sale rather than a bailment.- Bentley v. Snyder, 101 Iowa, 1; Norwegian Plow Co. v. Clark, 102 Iowa, 31. Here there was an explicit agreement to buy at a fixed price, and pay for all flour remaining undisposed of “at the expiration of 90 days from the date of the contract.” Fisher was made agent for the flour sold within this period, but purchaser of that on hand at its expiration. The facts of the case bring it squarely within the rule recognized in Conable v. Lynch, 45 Iowa, 84.

The appellant argues on the theory that time must be computed from the date of shipment. If this were- to be conceded, still the mortgage was executed after the lapse of 90 days. True, plaintiff advised Fisher of an extension of time June 14th, but without his request, and he' does not appear to have assented to the proposal. He Avas then purchaser under the terms of the agreement, on condition that the title should not pass till payment, and this situation could not be changed by the mere suggestion of plaintiff without his acquiescence. As Fisher was in possession under a conditional sale, the mortgagee for value and with: out notice was entitled to protection. — Aeeirmed.