While the

314. Destruction of the Property after Delivery. risk of loss generally attends the ownership of goods, we have seen that by agreement of the parties they may be separated.1 They are so separated when the conditional vendor delivers the goods to the conditional vendee and the latter makes an absolute promise to pay the price at a stipulated time.2 In such a case the vendor "has done all that he was to do except to receive the price," and the vendee "has received all that he was to receive as the consideration of his promise to pay.' If the goods are destroyed while the vendee is thus in possession and enjoyment of them, the loss must fall on him.1

"3

315. Modified by Statutes. — The foregoing rules relating to conditional sales have been modified in many of the States by statutes. While these differ in details, their general purpose is to declare void as to the vendee's creditors, or bona fide purchasers, conditional sales which are not reduced to writing and duly recorded. As a rule, they do not affect the validity of the sale contract, as between vendor and vendee, nor the rights of such parties under it. Nor do they affect the rights

1 Supra, ¶ 120.

2 Tufts v. Griffin, 107 N. C. 47; 12 S. E. 68 (1890); Burdick's Cases on Sales, 568; contra, Randle v. Stone, 77 Ga. 501 (1886).

Burnley v. Tufts, 66 Miss. 49; 5 So. 627 (1888).

Roach v. Whitfield, 94 Ark. 448; 127 S. W. 722 (1910); Jessup v. Fairbanks, M. & Co., 38 Ind. App. 673; 78 N. E. 1050 (1906); Collerd v. Tully, 78 N. J. Eq. 557; 80 At. 491 (1911), applying Uniform Sales Act, § 22 (a); Harley & Willis v. Stanley, 25 Okla. 89; 105 Pac. 188 (1909); La Valley v. Ravenna, 78 Vt. 152; 62 At. 47 (1905).

5 Campbell v. Atherton, 92 Me. 66; 42 At. 232 (1898); Carriage Co. v. Bartley, 102 Me. 492; 67 At. 567 (1907); Speyer v. Baker, 59 Ohio St. 11; 51 N. E. 442 (1898); In re Legg, 96 Fed. 326 (1899); Swayne v. Tillotson, 148 Ia. 501; 127 N. W. 667 (1910); Mathews Piano Co. v. Markle, 86 Neb. 123; 124 N. W. 1129 (1910); Lauter Co. v. Isenreath, 77 N. J. L. 323; 72 At. 56 (1909); Eisenberg v. Nichols, 22 Wash. 70; 60 Pac. 124 (1900); Wolf Co. v. Kutch, 147 Wis. 209; 132 N. W. 981 (1911).

• French v. Osmer, 67 Vt. 427; 32 At. 254 (1895); Burdick's Cases on Sales, 536; Wooley v. Geneva Wagon Co., 59 N. J. L. 278; 25 At. 789 (1896); Hewit v. Berlin Mach. Works, 194 U. S. 296; 24 Sup. Ct. 690 (1901).

7 But see N. Y. Personal Property Law, §§ 60-67; Baum v. Wm. Knabe & Co., 33 App. D. C. 237 (1909), construing Code §§ 547 and 1619; York M. Co. v. Cassell, 201 U. S. 344; 26 Sup. Ct. 481 (1906); Nauman Co. v. Bradshaw, 193 Fed. 350 (1912), applying Ia. Code 1897, §§ 2905, 2906;

of the vendor as against the creditors or subvendees of the conditional vendee, if the sale contract was made in a State having no such statute.1

316. Conditional Vendor may be estopped. Although the parties to a conditional sale may have stipulated in express terms that title is to remain in the vendor, yet, if he clothes the vendee with apparent authority to sell the property, he will be estopped from asserting his title against a bona fide purchaser from the conditional vendee.2 He will be estopped, too, if he assents in advance to the vendee's selling to a third party and ships the goods to the latter without notifying him of the conditional character of the sale. And he may waive his right to retake the property, upon default, by notifying the buyer that the contract will be held until a specified time.1

A conditional vendor may estop himself as against the purchaser of land, or a lien holder thereon, by permitting the property to become attached to the land as a part of the realty.5

316 (a). Conditions imposed by Copyright Owners. Attempts have been made by book publishers to qualify future sales by their vendees, or to limit or restrict such future sales at a specified price. These have failed. When the publisher passes title to the wholesaler, he loses all right to control the price at which purchasers from the wholesaler shall sell the book. His dominion over the book has ceased."

Boyer v. Knowlton Co., 85 Ohio St. 104; 97 N. E. 137 (1911), applying 2 Oh. R. S. § 4155.

1 Lane v. Banda Mex. Co., 78 N. J. Eq. 439; 79 At. 365 (1911), applying L. 1898, p. 700, §§ 71 & 72.

2 Columbus Buggy Co. v. Tooley, 73 Miss 529; 19 So. 232 (1896); Burdick's Cases on Sales, 538; cf. Starr Piano Co. v. Morrison, 159 Mich. 583; 124 N. W. 562 (1910); Weiner v. Harris (1910), 1 K. B. 285; 79 L. J. K. B. 342.

3 Cranshaw v. Wilkes, 134 Ga. 684; 68 S. E. 498 (1910).

4 National Cash Reg. Co. v. Richards, 159 Mich. 128; 123 N. W. 587 (1909).

5 Washburn v. Inter-Mountain Mining Co., 56 Ore. 578; 109 Pac. 382 (1910). See supra, ¶ 45.

Bobbs-Merrill Co. v. Straus, 210 U. S. 339; 28 Sup. Ct. 722; 52 L. ed. 1086 (1908). Upon the page immediately following the title page of each copy of the book appeared the following words: "Copyright 1904. The Bobbs-Merrill Company. The price of this book at retail is One

1

317. Statutory Reputed Ownership. -The common-law doctrine that the possession of goods does not confer apparent ownership has been modified by legislation which has established the doctrine of "statutory reputed ownership." It was introduced by a provision of the English bankruptcy statute of 1623,2 to the effect "that if any person shall become bankrupt, and at such time as they shall so become bankrupt shall, by the consent and permission of the true owner and proprietary, have in their possession, order, and disposition any goods or chattels whereof they shall be the reputed owners, and take upon them the sale, alteration, or disposition as owners," in every such case the commissioners in bankruptcy shall have power to sell the same for the benefit of the bankrupt's creditors. Under this statute the owner of goods, who has delivered possession to another pursuant to a contract commonly known as one of conditional sale, is precluded from asserting his title as against an assignee in bankruptcy,3 unless the circumstances of the case, including trade usages applicable to the transaction, rebut the presumption of reputed ownership in the bankrupt. This statutory provision, it will be observed, modified the common-law rights of a conditional vendor as against an assignee in bankruptcy only; it did not apply to the vendee's purchasers nor to his execution or attachment creditors.

318. Reputed Ownership misapplied. A few American courts, failing to note the narrow limitations of the statute, Dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

The Bobbs-Merrill Company."

1 Lickbarrow v. Mason, 1 H. Bl. 357, 360 (1790). "Possession of goods is prima facie evidence of title, but that possession may be precarious, as of a deposit; it may be criminal, as of a thing stolen; it may be qualified, as of things in the custody of a servant, carrier, or factor. Mere possession without a just title gives no property."

221 Jas. I. c. 19, §§ 10 and 11; continued in 46 & 47 Vict. c. 52, § 44; The Bankruptcy Act of 1883.

3 Horn v. Baker, 9 East, 215 (1808).

Priestly v. Pratt, L. R. 2 Ex. 101 (1867); Crawcour v. Salter, 18 Ch. D. 30, 53 (1881). In the latter case it was held that, as it is a notorious custom for hotel-keepers to hire their furniture, the mere fact that the owner of furniture permits the hotel-keeper to have possession of it, under a lease with an option to purchase, does not warrant the inference that the hotel-keeper is the reputed owner.

were misled by the decisions which it evoked, to apply the doctrine of reputed ownership to all cases of conditional sales, accompanied by transfer of possession, in favor of the vendee's bona fide purchasers and creditors. They considered the doctrine to be as sweeping and as well established in English law as in the law of France or of Scotland. In a leading Pennsylvania case it was declared in these terms: "Possession of personal property is the great mark of ownership. It is almost the only index which the world in general has to look to. . . . Here the seller did not retain the possession, but was to retain the property after he had transferred the possession to the buyer. . . . It is a rule of general policy, which declares possession to be the evidence of property, and the presumption is, that every man is trusted according to the property in his possession."

"2

319. The Mercantile View. Although the foregoing extract does not contain an accurate statement of the common law upon this point, it fairly represents the contention of the mercantile community as to what the law should be; and in compliance with mercantile demands, the doctrine of reputed ownership has been extended by statute in many jurisdictions

3

1 Rose v. Story, 1 Pa. St. 190 (1845); Brundage v. Camp, 21 Ill. 330 (1859). See Harkness v. Russell, 118 U. S. 663, at p. 670 (1886); Burdick's Cases on Sales, 524; and compare the reasons assigned in Rose v. Story, at p. 196, with those stated in Load v. Green, 15 M. & W. 216, at p. 222 (1846). The Pennsylvania and Illinois courts do not apply this doctrine to cases of bailment. Goss Printing Press Co. v. Jordan, 171 Pa. St. 479; 32 At. 1031 (1895); Burdick's Cases on Sales, 47.

2 Martin v. Mathiot, 14 S. & R. 214 (1826); cf. this with the French maxim, "En fait de meubles possession vaut titre," and the Scotch maxim, "The property of movables is presumed from possession." The Pennsylvania courts have gone further in applying these principles than have those of Scotland; for the latter have declared that the possession of a conditional vendee is not reputed ownership. Murdoch v. Greig, 16 Sess. Cas. 396, 4th ser. (1889), a decision in accord with Harkness v. Russell, supra.

3 Chalmers' Sale of Goods (2d ed.), 118, (7th ed.), 152. "The merchants and bankers contended that, in the interests of commerce, if a person was put or left in possession of goods or documents of title, he ought, as regards innocent third parties, to be treated as the owner of the goods." Cf. Farmers' Bank v. Logan, 74 N. Y. 568, 586 (1878); Burdick's Cases on Sales, 194. 200.

to conditional sales of personal property. The provisions of these statutes are so various, however, that no attempt will be made to discuss them.1

320. Effect given to the Mercantile View by Factors Acts. A reputed ownership, also unknown to the common law, has been created in England and in a number of our States by statutes commonly known as "Factors Acts." Like the enactments relative to conditional sales, they differ too widely in detail to permit of adequate treatment in this place.2 But, speaking broadly, they have for their primary object "the protection of third persons who, in good faith and in ignorance of any defects of title, advance money or incur obligations on the faith of property which is apparently owned by the persons with whom they deal, who, however, in fact hold it merely as factors or agents, having been intrusted by the owners with possession of the property or of documentary evidence of title to it." 3

They do not apply to cases, however, where "the possession of the factor or agent is, from the beginning, tortious, wrongful, and unlawful," but only to cases where the owner has consciously and voluntarily intrusted the factor or other agent with the possession of the documents or merchandise; "4 nor to the case of a vendor who is allowed by the purchaser to remain in possession of the goods or of documents of title thereto.5

1 1 Stimson's Am. Statute Law, §§ 4550-4555. In a number of States contracts of conditional sale accompanied by a delivery to the buyer are declared to be absolutely void as against subsequent purchasers and mortgagees in good faith unless duly filed in a prescribed office. See N. Y. Personal Property Law, §§ 60-67; English Sale of Goods Act, § 25 (2), applied in Helby v. Matthews, 1895, A. C. 471; 11 The Reports, 232; supra, ¶ 317.

2 1 Stimson's Am. Statute Law, §§ 4380-4388; English Sale of Goods Act, § 25 (1), also 52 & 53 Vict. c. 45, Factors Act of 1889. See Appendix III. for typical American statutes and commentary thereon.

3 Commercial Bank v. Hurt, 99 Ala. 130; 12 So. 568 (1892); Burdick's Cases on Sales, 518.

Soltau v. Gerdau, 119 N. Y. 380, 390; 23 N. E. 864 (1890); Burdick's Cases on Sales, 752. The English legislation on this subject has received careful consideration in Campbell on Sales (2d ed.), 539–553.

5 Johnson v. Credit Lyonnais Co., 3 C. P. D. 32 (1877); Burdick's Cases on Sales, 543.