vendor deceives him in respect of such title, any loss which ensues, in cases such as we are now considering, is ascribable to his own fault or to his confidence in his vendor, and not to any conduct of the true owner having a legal tendency to mislead and victimize him.' In Ballard v. Burgett,' it is said: "The possession of the contemplated purchaser gives him no better opportunity to impose upon purchasers than that of an ordinary bailee. Possession by a vendor without title has never been held sufficient to confer title upon a purchaser from him. Clearly, the existence of an executory contract by which a vendor not in possession may acquire title upon the performance of some act by him, will not enable him to confer a title upon a purchaser from him. If neither of these facts separately considered will enable a vendor to confer title, I am unable to see how such result can be produced by uniting them in a vendor." This is the prevailing view in this country as well as in England.2

309. What Right may be acquired by a Purchaser from a Conditional Vendee. According to the prevailing rule, a purchaser from a conditional vendee, before default by the latter, may acquire all of his vendor's rights under the contract, and if the conditions are duly performed or tendered by his vendor or by himself, he may obtain a perfect title to the goods.3 It has

the obligation to inquire into the character of that possession; and inasmuch as the inquiry is a necessity, it does not concern the public that the conditions are many; the answer will reveal all."

1 Ballard v. Burgett, 40 N. Y. 314, 316 (1869). The foregoing case is distinguished in Comer v. Cunningham, 77 N. Y. 391 (1879), from prior decisions, which were viewed as establishing "that a condition that the title shall not pass until payment, when attached to a delivery upon an actual completed contract of sale, is available only as against the vendee and persons claiming under him, other than bona fide purchasers."

2 Harkness v. Russell, 118 U. S. 663; 7 Sup. Ct. 51 (1886), and cases digested in the opinion. Cullin-McCurdy Construction Co. v. Vulcan Iron Works, 93 Ark. 342; 124 S. W. 1023 (1910); Myrick v. Liquid Carbonic Co., 137 Ga. 154 (1911); Fairbanks Co. v. Graves, 90 Miss. 453; 43 So. 675 (1907); Standard Steam Laundry v. Dole, 22 Utah, 311; 61 Pac. 1103 (1900).

Day v. Bassett, 102 Mass. 445 (1869). So the assignee of the conditional vendor may acquire all the rights of such vendor. Bank of Little Rock v. Collins, 66 Ark. 240; 50 S. W. 694 (1899); Cutting v. Whittemore, 72 N. H. 107; 54 At. 1098 (1903). Such purchaser cannot sub

been judicially declared that although the conditional vendor remains the general owner until the condition is performed, yet the conditional vendee, before default or after a default which has been waived by the vendor,' has an interest in the property as special owner which the law recognizes and protects.2 Accordingly, even an attaching creditor of the conditional vendee, it was held in the last cited case, upon tendering payment of the balance of the purchase price, devested the vendor of his general ownership and vested it in the vendee subject to the lien of the attachment.3

310. If, however, default has been made by the conditional vendee, and especially if the vendor has demanded possession of the property after such default, a subsequent purchaser from the vendee acquires no ownership in the goods, and cannot, by tendering the overdue balance of the purchase price to the conditional vendor, compel a transfer of title to him. The vendor cannot be forced "against his will to accept a new creditor or a new paymaster, or to make a new contract of sale." 4 The fact that the original vendee has paid a part of the purchase price, before default, does not change the property rights of the parties in most jurisdictions. Upon default, the vendor is entitled to retake the goods and hold them free from any lien or interest of the vendee or of a buyer from him.5 In some juris

ject the goods to a carrier's lien; Corinth Engine & B. W. v. Miss. Cent. Ry., 95 Miss. 817; 49 So. 262 (1909).

1 Mosby v. Goff, 21 R. I. 494; 44 At. 930 (1899).

2 Hervey v. Dimond, 67 N. H. 342; 39 At. 331 (1893); National Cash Reg. Co. v. Wapples, 52 Wash. 657, 660; 101 Pac. 227 (1909), citing the text; Star Clothing Co. v. Nordeman, 118 Tenn. 384; 100 S. W. 93 (1907).

3 If the seller retakes the property before the buyer's default and wrongfully, the buyer is entitled to damages for the seller's breach of contract. Madison Riv. Live Stock Co. v. Osler, 39 Mont. 244; 102 Pac. 325 (1909).

4 Lippincott v. Rich, 19 Utah, 140; 56 Pac. 806 (1899); Fidalgo Island S. Co. v. Browne, 61 Wash. 516; 112 Pac. 629 (1911); the purchaser from a conditional vendee was held liable for conversion. But such right may be waived. Karalis v. Agnew, 111 Minn. 522; 127 N. W. 440 (1910).

5 Hawkins v. Hersey, 86 Me. 394, 399; 30 At. 14 (1894); Empire State F. Co. v. Grant, 114 N. Y. 40; 21 N. E. 49 (1889); Burdick's Cases on Sales, 125; Hoe v. Rex Mn'f. Co., 205 Mass. 214; 91 N. E. 154 (1910); notes were taken as collateral. Venable v. Young, 137 Ga. 375; 73 S. E. 633 (1912); Zederman v. Thomson, 17 N. M. -; 121 Pac. 609 (1912);

dictions, the conditional vendor must exercise his right of retaking the property within a reasonable time.1

310 (a). Law applicable to Conditional Sales. - The validity of conditional sales depends upon the law of the State where made. Accordingly, similar transactions may be fraudulent in one State, and valid in another. If title is legally reserved by the seller in the State where the conditional sale contract is made, the fact that the property is to be taken and is taken by the vendee into a State where the transaction would not result in such reservation of title does not affect the conditional vendor's rights.*

6

311. Anomalous Doctrines. In some jurisdictions very peculiar views are entertained with respect to conditional sales. For example, the courts of Pennsylvania hold, that, upon the delivery of property to the vendee under a conditional sale, it becomes subject to execution at the suit of his creditors and is transferable to bona fide purchasers from him. This doctrine appears to have originated in a misapprehension of the ratio decidendi in such cases as Horn v. Baker, cases which were based upon statutory provisions in England relating to reputed ownership. In the language of an eminent judge: "This [statutory] presumption of property in a bankrupt, arising from his possession and reputed ownership, became so deeply imbedded in the English law, that in process of time many persons in the profession, not adverting to its origin in the statute of bankruptcy, were led to regard it as a doctrine of the comWolf Co. v. Kutch, 147 Wis. 209, 214; 132 N. W. 981 (1911); Stearns v. Drake, 24 R. I. 272; 52 At. 1082 (1902); Bray v. Lowery, · Cal. -; 124 Pac. 1004 (1912); contra, Ross-Meehan Foundry Co. v. Pascagoula Co., 72 Miss. 608; 18 So. 364 (1895).

1 Townsend v. Melvin, 5 Pennewell (Del.), 495; 63 At. 330 (1905). 2 In re Gilligan, Troy Wagon Works v. Hancock, 152 Fed. 605; 81 C. C. A. 595 (1906).

Bryant v. Swofford Bros., 214 U. S. 279; 29 Sup. Ct. 614 (1909).

4 Lane v. Banda Mex. Co., 78 N. J. Eq. 439; 79 At.] 366 (1911); Studebacker Bros. v. Man, 14 Wy. 68; 80 Pac. 151 (1905).

5 Goss Printing Press Co. v. Jordan, 171 Pa. St. 474; 32 At. 1031 (1895); Burdick's Cases on Sales, 47.

69 East, 215 (1808).

7 Bradley, J., in Harkness v. Russell, 118 U. S. 663; 7 Sup. Ct. R. 51 (1886); Burdick's Cases on Sales, 524, 528.

mon law; and hence in some States in this country where no such statute exists the principles of the statute have been followed, and conditional sales have been condemned, either as being fraudulent and void as to creditors, or as amounting in effect to absolute sales, with a reserved lien or mortgage to secure the payment of the purchase price."

An example of the latter class of cases is afforded by Hervey v. Rhode Island Locomotive Works,1 where the United States Supreme Court felt bound to apply the Illinois rule, that a conditional vendor is not the owner of the property, but the mortgagee thereof, who loses all interest in or lien on it, as against the vendee's creditors or bona fide purchasers, by failure to comply with the chattel mortgage act. This, as we have seen, is not the rule which generally prevails.2

312. Conditional Sale transformable into an Absolute Sale. Upon the vendee's performance of the stipulated conditions title vests in him without any further act or agreement of the parties, unless some further act is stipulated for.3 Neither a formal delivery by the vendor nor a formal acceptance by the vendee, after such performance or after the vendor's waiver of performance, is necessary.

4

Whether a vendor transforms a conditional into an absolute sale, by suing the vendee for the purchase price, is a question upon which the decisions are at variance. In the Indiana case cited in the last note, the Supreme Court gave an affirmative answer to the question; 5 and in Alabama, it has been held

1 93 U. S. 664 (1876). Followed in Unitype Co. v. Long, 143 Fed. 315; 74 C. C. A. 453 (1906).

2 Supra, ¶¶ 308-310; McDaniel v. Chiarmonte, Ore. —; 132 Pac. 33 (1912). "A contract, binding a buyer to buy and unconditionally pay the price of a chattel, and providing that the seller shall retain title as security for the price, and on default he may take possession, is a conditional sale, and not a chattel mortgage." Triplett v. Mansur & T. I. Co., 68 Ark. 230; 57 S. W. 261; 82 Am. St. R. 284 (1900).

3 Swallow v. Emery, 111 Mass. 355 (1873).

4 Smith v. Barber, 153 Ind. 322; 53 N. E. 1014 (1899).

Nashville Lumber Co. v. Robinson, 91 Ark. 319; 121 S. W. 350 (1909); Burch v. Pedigo, 113 Ga. 1157; 39 S. E. 493; 54 L. R. A. 808 (1909); Mathews Piano Co. v. Markle, 86 Neb. 123; 124 N. W. 1129 (1910); Poirier Mnfg. Co. v. Kitts, 18 N. D. 556; 120 N. W. 555 (1909), accord.

that a conditional vendor's attempt to fix a materialman's lien on the property is a waiver and abandonment of the title reserved by the contract, and operates to convert the conditional into an absolute sale.1

313. Other courts have answered the question in the negative. And this would seem to be the better answer. As the parties have agreed that title shall not pass until the price is paid, it is difficult to see how, upon principle, an action for the price can affect the vendor's title, until the action results in the recovery of the price.2

Certainly, a conditional sale is not transformed into an absolute sale, by an absolute promise on the part of the vendee to buy and to pay the agreed price,3 nor by his promise to secure a part of the purchase-money by a chattel mortgage on the property. In the latter case, the transfer of title by the conditional vendor and the delivery of the mortgage by the vendee are to be concurrent acts. Of course the seller cannot retake the property as his own, and also collect the purchase price." In case he does retake it, upon the buyer's default, the question arises whether he has rescinded the contract, or has taken possession for the purpose of enhancing his security. If he has rescinded, he cannot recover the unpaid purchase price. If his resumption of possession is for security, his right to the balance of the price ought not to be affected."

1 Hickman v. Richburg, 122 Ala. 638; 26 So. 136 (1899). But see Forbes Piano Co. v. Wilson, 144 Ala. 586; 39 So. 645 (1905).

2 Vaughan v. Hopson, 10 Bush (Ky.), 337 (1874); Brewer v. Ford, 54 Hun, 116; 59 Hun, 17; 126 N. Y. 643 (1891); National Cash Register Co. v. Coleman, 85 Hun, 125 (1895); Stalker v. Hayes, 81 Conn. 711; 71 At. 1099 (1909); Warner El. M. Co. v. Capitol I. B. & L. A., 127 Mich. 323; 86 N. W. 828 (1901); Jones v. Reynolds, 45 Wash. 371; 88 Pac. 577 (1907).

Perkins v. Mettler, 126 Cal. 100; 58 Pac. 384 (1899); Bierce v. Hutchins, 205 U. S. 340; 27 Sup. Ct. 524 (1907); contra, First Congregational Church v. Grand Rapids Co., 15 Col. App. 46; 60 Pac. 949 (1900).

Van Allen v. Francis, 123 Cal. 474; 56 Pac. 339 (1899); Monitor Drill Co. v. Mercer, 163 Fed. 943; 90 C. C. A. 303 (1908).

Manson v. Dayton, 153 Fed. 258; 82 C. C. A. 588 (1907).

6 Madison R. L. Co. v. Osler, 39 Mont. 245; 102 Pac. 325 (1909). 7 Harkness v. Russell, 118 U. S. 663; 7 Sup. Ct. 51 (1886); Burdick's Cases on Sales, 524.