formance of the condition is a condition precedent to the vesting of the title; where title is to revest in the seller on the happening of a condition, the condition is subsequent. The difference between an executory contract of sale and a conditional sale is that in case of a conditional sale the buyer is absolutely entitled to the property and the seller cannot prevent the vesting of the title if the condition is complied with, whereas an executory contract of sale confers no interest in the title to the property, and some affirmative act on the part of the seller is necessary to confer title on the buyer. Mere performance of an executory contract of sale on the part of the buyer will not give him title, whereas performance of a contract of conditional sale will give him title. When the question arises as to whether a sale is conditional or absolute, the intention of the parties must be ascertained. If the contract of the parties is in writing, it will govern them, and such intention must be gathered from the context of the instrument, taking into consideration in doubtful cases the situation of the parties and surrounding circumstances. When the contract is not in writing, their acts, declarations, the object sought to be accomplished and surrounding circumstances must be considered. Contracts of conditional sale are quite common at this day, and are used extensively by those who sell personal property on the installment plan. The great advantage that these contracts give to the seller is that he may retake his property if the terms of the contract are not complied with, and if the contract is properly made and filed it is good as against third parties, thus preventing the buyer from disposing of the property so as to bar the rights of the seller. A conditional sale may ordinarily be readily distinguished from other forms of contract. The chapters on Sales of Personal Property, Bailments and the foregoing section on Chattel Mortgages should be consulted. As a conditional sale is usually made for the purpose of securing the purchase price, and a chattel mortgage often for the same purpose, it may occur that it is difficult to distinguish between the two. The courts are inclined in all doubtful cases to treat the contract as a chattel mortgage, as a conditional sale is apt to work a forfeiture as to the payments made, and it is a general rule that the law does not favor forfeitures. A chattel mortgage requires that title shall vest in the person giving it, whereas

by a contract of conditional sale such title is first to be acquired by the purchaser. If the transaction contemplates that one party shall hold the personal property of another merely as security, then the transaction is a chattel mortgage no matter what its form.

Those who sell goods on the installment plan frequently give to the purchaser a so-called "lease" whereby the payments on account are called rent, and it is provided that if the buyer pays the rent promptly for a certain length of time the rent shall be applied on the purchase price of the property, and title shall then vest in the lessee. Such leases are nothing but conditional sales and are so treated by the courts. The object of calling such transactions leases, seems to be to give the buyer more fully to understand his want of title, and the necessity of making prompt payments if he wishes to retain the property, and also to impress third parties more firmly with the rights of the seller. As a matter of law, however, these leases have the same effect as conditional sales, and in order to be effectual against third persons, must be filed as provided, for conditional sales.

The usual condition in contracts of conditional sale is that if the buyer fails to make the payments for the property as agreed upon, that he shall forfeit all payments made and that the seller shall have a right to retake the goods. The parties may make any stipulation they see fit as to what the effect of the noncompliance with the condition shall be. For instance, they may stipulate that the seller may retake the goods and shall retain a percentage of the payments, or that the buyer shall be liable for a certain amount for the use of the property, or that the goods shall be resold for his account and he shall become liable for the difference, or that he shall forfeit everything paid. Such conditions are valid.

Contracts to be in writing and filed.-The statute in Wisconsin provides: "No contract for the sale of personal property, by the terms of which the title is to remain in the vendor and the possession thereof in the vendee until the purchase price is paid or other conditions of sale are complied with, shall be valid as against any other person than the parties thereto and those having notice thereof unless such contract shall be in writing, subscribed by the parties and the same, or a copy thereof, shall be filed in the office of

the clerk of the town, city or village where the vendee resides, or if he shall not be a resident of the state, then in the office of the clerk of the town, city or village where the property may be at the time of making such contract, and such clerk shall file, keep and index the same in like manner as mortgages of personal property and receive a like compensation therefor; but the effect of such filing shall not extend for more than one year after the time fixed for payment of the contract price or for the performance of the other conditions of such sale."

Decisions.-The following are some of the decisions of the Supreme Court under this section of the statutes: The statute provides that a contract of sale, to be valid against third persons must be in writing "subscribed by the parties." It has been decided that a contract signed only by the buyer, is void as against third persons, even though it is filed. A contract for the sale of lumber provided that the seller "has and hereby does sell and convey" certain piles of lumber. It was also provided that the lumber "is at the sole and exclusive risk of the vendee, and any loss thereof, or damages of any kind thereto, shall be borne by them...... It is further expressly agreed by and between the parties that the title and right of possession of the said lumber.... shall be and remain in the 'seller' until the entire amount due shall be fully paid." It was further provided that the buyer should turn the proceeds over to the seller. The lumber was piled in the yard of the buyer, and the contract was filed as a conditional sale. A creditor of the buyer contended that the contract was in effect a chattel mortgage, and that it was void for the reason that no account of sales was filed with the clerk as provided for in cases from stocks of merchandise covered by mortgage. The court held the contract to be one of conditional sale and valid against creditors, and therefore held also that it was not necessary to file a statement of sales made. A contract of conditional sale is to be distinguished from a contract for the sale of goods on commission. "The controlling question undoubtedly is whether the contract provides for consignments of goods to be settled for at fixed prices out of the proceeds of the goods, when sold, or whether under the terms of the contract, the alleged consignee is in fact a purchaser, and becomes liable for the goods,

when sold, as a principal debtor; and these questions are to be determined not so much by the words used as by the evident and legal effect of the provisions." A contract for the sale of logs provided that title should remain in the seller until the logs were paid for. The buyer before payment made an assignment for the benefit of creditors, and the assignee manufactured the logs into lumber and sold it. It was decided that the seller was entitled to be paid the value of the logs in full before other creditors were paid, as the assignee held the proceeds in trust for the seller. It is held in this state that a contract for the sale of standing timber is a contract for the sale of real estate, and such contract may provide that title in the timber cut shall remain in the seller. As the statute in regard to conditional sales applies only to personal property, a contract for the sale of standing timber is not affected by it, and is good as against third parties, even though they purchase from the buyer in good faith. It is held, however, that a conditional vendor may estop himself by his acts from asserting title against a purchaser from the vendee. "The simple principle is that if the conditional vendor, having given the vendee possession and apparent authority to sell the property, either expressly or impliedly consent to such sale by his vendee, he will be estopped from asserting his rights to the injury of a purchaser who bought in the ordinary course of business, and paid for the property without notice."

Contracts for the sale of household goods. It is provided in this state by statute that "all contracts for the sale of furniture or other household effects, made on condition that the title thereto shall not pass until the price is paid in full, whether in the form of a lease or otherwise, shall be in writing and a copy thereof shall be furnished the vendee by the vendor at the time of sale; and all payments made by or in behalf of the vendee and all charges, whether in the nature of interest or otherwise, as they accrue shall be indorsed by the vendor upon such copy if the vendee so requests. If the vendor fails to comply with any of these provisions through negligence his rights under such contracts shall be suspended while such default continues; and if he refuses or wilfully or fraudulently fails to comply therewith he shall be deemed to have waived the

conditions of such sale. The vendor, upon taking possession of such furniture or effects for non-compliance with the terms of such contract, shall furnish the vendee or other person in charge thereof an itemized statement of the account, showing the amount due thereon, and the vendee may, at any time within fifteen days after such taking, redeem the property so taken by paying to the vendor the full amount of the price then unpaid, together with interest and all lawful charges and expenses. Said fifteen days shall not begin to run until such statement is furnished, provided the vendee or other person in charge can be found by the vendor by the exercise of reasonable care and diligence." It should be borne in mind that the statute in regard to conditional sales, previously cited, also applies to a sale of house-hold goods. It has been decided that a piano comes within the designation "furniture or other house-hold effects." There is some doubt as to whether a buyer can waive the provisions of this section.