voice prices and collecting, for the seed not returned, the invoice prices, less commissions. The said seed were in packages and papers. D. M. Ferry & Co. printed a price upon said packages, but printed no price upon the papers; but, for the seed not returned by the retailer to D. M. Ferry & Co., the retailer accounted to D. M. Ferry & Co. for each package, not returned, at the price printed on said package, and at the price of five cents for each paper, less the commission.

"The retailer renders no account to D. M. Ferry & Co. of any sales made by him, and gives no information in regard thereto, but the representative of D. M. Ferry & Co. goes annually to each retailer, makes his own investigation from the seed that the retailer has on hand, and states the account between the retailer and D. M. Ferry & Co.

"There was no agreement between the retailer and D. M. Ferry & Co. that the seed would be sold at the prices named on the packages, nor as to the price at which the papers were to be sold; but the retailer was made to account to D. M. Ferry & Co. for all seed, not returned, at the prices printed on the packages and at five cents for the papers, which is invoice prices." * *

*

Mr. Mechem in his work on Sales, in volume 1, § 46, has this to say: "The distinction between sale and an agency to sell is ordinarily clear and simple, but, unfortunately, many cases are presented in which the parties, for the purpose of evading the operation of some local statute, of defeating the claims of creditors or otherwise, have made contracts involving such a confused jumble of the elements of both sale and agency that it is exceedingly difficult to determine their true character. Certain of these contracts have evidently been framed for the purpose of concealing a sale under the guise of an agency, while others have been drawn with a view to having them construed as contracts of sale or agency, as might best suit the convenience or subserve the purposes of their framers. In construing these anomalous instruments, courts look chiefly at the essential nature and preponderating features of the whole instrument, and not at the peculiar form of isolated parts of it. It matters very little what the parties have chosen to call their contract. *** If the parties have made a contract which really operates to transfer the title, it is a sale, notwithstanding they may have labeled it a 'special selling factor appointment,' or have expressly stipulated that the alleged factor 'shall never purchase such goods for his own account.' So with regard to the use of the term 'consign.' It may express the true state of the case, and, if so, it will be given effect; or it may be a mere subterfuge, and, if it be the latter 'there is no magic in that word which can take from the transaction its real character.'"

This is peculiarly illustrated by the cases of Arbuckle Bros., whose contracts have been the subject of review in some of the courts of last resort, notably those of Georgia, Tennessee, and Virginia, wherein it was held that notwithstanding the contract was called, and purports on its face to be, a "special selling factor appointment," stipulates for a retention of title, and that the goods shall be consigned and held by the party, merely as a factor, and that such factor shall never purchase

such goods on his own account, and the same to be sold in name of the factor, but only as the factor of Arbuckle Bros., and only at such prices and on such terms as said Arbuckle Bros. may give from time to time. The contract provided also for certain "allowances and commissions." There were other provisions as to payments, etc., and these courts held that the entire contract disclosed a sale and not an agency, notwithstanding the many such expressions to be found therein. Arbuckle Bros. v. Gates & Brown, 95 Va. 802, 30 S. E. 496; Arbuckle Bros. v. Kirkpatrick, 98 Tenn. 221, 39 S. W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Snelling v. Arbuckle Bros., 104 Ga. 362, 30 S. E. 863.

Speaking of this contract, the court in the latter case says: "It appears to have been drawn for the purpose of enabling Arbuckle Bros. to 'run with the hare or hold with the hounds,' according as, in the exigencies of a given case, their interest might dictate."

In reference to the same contract, the Supreme Court of Virginia, in above case of Arbuckle Bros. v. Gates & Brown, said: "The agreement was an attempt to accomplish that which cannot be done to make a sale of personal property and at the same time constitute the buyer simply an agent of the seller to hold the property until it is paid for. The two things are incompatible and cannot co-exist. The agreement had in it every element of sale. It was in substance and effect a sale, and must be so declared. It does not matter by what name the parties chose to designate it. That does not determine its character. The courts look beyond mere names and within to see the real nature of an agreement and determine from all its provisions, taken together, and not from the name that has been given it by the parties, or from some isolated provision, its legal character and effect."

*

The case often cited and referred to as a leading case among cases of this character is that of Ex parte White, L. R. 6 Ch. 397.

* *

The following authorities also may be cited in addition to the above, to the effect that the mere use of the words "agent," or "consignment,' or "commissions," etc., does not determine the character of the contract, but that it is the duty of the court to reach the real intention of the parties and declare the relationship: Chickering v. Bastress, 130 Ill. 206, 22 N. E. 542, 17 Am. St. Rep. 309; Jackson v. State, 2 Ala. App. 226, 57 South. 110; Peoria Mfg. Co. v. Lyons, 153 Ill. 427, 38 N. E. 661; Herryford v. Davis, 102 U. S. 235, 26 L. Ed. 160; House v. Beak, 141 Ill. 290, 30 N. E. 1065, 33 Am. St. Rep. 307; In re Wells (D. C.) 140 Fed. 752; In re Carpenter (D. C.) 125 Fed. 831; Baker v. Turner, 19 App. Div. 223, 46 N. Y. Supp. 25; Bradley Alderson & Co. v. McAfee (D. C.) 149 Fed. 254; People v. Newman, 99 Mich. 148, 57 N. W. 1073.

In this latter case it is said in the opinion that "calling profits 'commissions' does not change their character." * *

*

While, in the instant case, a portion of the contract has the words "sell on commission" and the word "consignment" written thereon, yet other portions (memorandum of shipment and invoice, etc.) make use

of the words "sold to" and agreement to "buy back," and nothing is said as to the title to the seeds or that the retail merchant is in fact the agent of the wholesaler, and, from what is therein contained, it is difficult to determine the real intention of the parties. The agreed statement of facts, however, contains the method of business, the course of dealing in reference to such transactions, and from such agreement it is disclosed that the retail merchant acquires complete dominion and control of the seeds, makes sales to whom he pleases at his own prices and on whatever terms he pleases, and makes no accounting whatever to the wholesaler. Indeed, from the agreed statement of facts it appears the retailer deals with the seed as his own. He need not sell at all, but may give away the seed or use them himself. He is to account to the wholesaler for the seed not returned at the invoice price, less the commission, when the traveling man calls and adjusts the accounts, giving the retailer credit for the unsold seed at invoice price. This settlement is not to be made as the seeds are sold, but the settlement is to be made when the "traveler calls"; that is, on demand, as it were. The retailer sold to his customer in his own name, and the wholesaler was in no manner interested in the price obtained, but merely took back the unsold seeds, allowing credit therefor at invoice prices. When sold by the retailer, the proceeds of the sale were his own, and no duty rested on him to account therefor to the wholesale dealer.

Under the agreed statement of facts as shown by the record, guided by the rules of law as found in the foregoing authorities, we think it quite clear that the retailer was not a mere agent but was in fact a purchaser of seeds. It is shown that the retailer had the right to return the unsold seeds, and that the wholesaler agreed to buy them back at invoice prices. What, then, is the relation between the parties? *

We are of the opinion that the real transaction between D. M. Ferry & Co. and the retail merchants, under the agreed statements of facts, was that of "sale or return," as disclosed by these authorities and definitions. The retailer was to pay for the seeds not returned at a certain price previously fixed by the parties, and at a certain time (that is, when the "traveler calls"), and he had the option of returning seeds not sold.

* **

The court below erred in giving the affirmative charge for the defendant and in refusing that asked by the plaintiff. The judgment of the circuit court is therefore reversed, and, as the cause was tried upon an agreed statement of facts, one will be here rendered in favor of the plaintiff, for the sum sued for.

Reversed and rendered.

SPRINGFIELD ENGINE STOP CO. v. SHARP et al. (Supreme Judicial Court of Massachusetts, 1903. 184 Mass. 266, 68 N. E. 224.) Action by the Springfield Engine Stop Company against John C. Sharp, Jr., and others. Judgment for defendants, and plaintiff brings exceptions. Exceptions sustained.

LORING, J. This was an action for the price of an engine stop. A verdict for the defendants was ordered by the court, and the case is here on an exception to that ruling.

It appeared that the plaintiff placed an engine stop on an engine of the defendants for a 30 days' trial, in competition with another engine stop. The price was to be $200, and the stop was to be taken off by the plaintiff if the defendants did not like the stop. The contract was by word of mouth, and nothing was said as to what should be done at the end of the 30 days if the defendants decided not to take the stop. The stop was installed and turned on for use on the afternoon of May 2d. On June 1st the defendants wrote asking for another 30 days' trial, and on June 8th the plaintiff wrote that it would extend the time of trial for 30 days, as requested. On the morning of Monday, July 3d, the defendants wrote to the plaintiff that after 60 days' trial they had determined to accept the other stop, and that the plaintiff's machine could be taken out at its convenience. The defendants' witness testified that "the plaintiff's stop was never used after the 3d day of July," and there was no other evidence on this point. Even if fractions of a day are ordinarily to be considered in computing the 30 days in such a case as this, there was evidence warranting a finding that the extension continued until, but not including, July 1st. The question whether the extension expired on June 30th or July 1st was a question of fact for the jury.

The plaintiff's first contention is that failure to give notice until July 3d, and the use of the stop on Saturday, July 1st, and Monday, July 3d, is conclusive of the defendants' liability, and in support of that contention it relies on Prairie Farmer Co. v. Taylor, 69 Ill. 440. That, also, was a case where a 30 days' trial was to be made of a machine, but in that case the machine was used for nearly a year without notice of an election, and what is said there must be taken to have had reference to the facts then before the court. The true rule is laid down in the other cases cited by the plaintiff, and it is this: The party to the contract who is to make the trial has the full period agreed upon for the trial, and, in the absence of any stipulation on the point, he has a reasonable time after the expiration of it to signify his election. See Elphick v. Barnes, 5 C. P. D. 321; Spickler v. Marsh, 36 Md. 222; Kahn v. Klabunde, 50 Wis. 235, 6 N. W. 888; Waters Heater Co. v. Mansfield, 48 Vt. 378.

The plaintiff's next contention is that it had a right to go to the jury on the use made on Saturday and on Monday as evidence of the defendants', election to take the stop. The retention of the stop after Friday, June 30th, apart from the use of it, had no significance. This was not the case of a sale or return. By the terms of the agreement, the plaintiff was to disconnect the stop from the engine and take it away if the defendants were not satisfied with it. But the use of the stop after the expiration of the period of trial agreed upon, unexplained, would be evidence of an election, as is the failure to return a machine taken under a sale or return agreement. See Kahn v. Klabunde,

50 Wis. 235; Spickler v. Marsh, 36 Md. 222; Waters Heater Co. v. Mansfield, 48 Vt. 378. The English cases are collected in Benjamin on Sales (4th Eng. Ed.) 593 et seq. In the case at bar the use of the stop on Monday could not be taken to be evidence of an election, for on Monday morning the defendants wrote to the plaintiff that they elected to take the other stop, and the letter was posted between 2 and 3 o'clock on that day. This letter deprives the use made of the machine on Monday of all force as evidence of an election, as was said in Hunt v. Wyman, 100 Mass. 198, 200, in a similar case. See, also, Elphick v. Barnes, 5 C. P. D. 321. There is nothing on the record showing why the defendants used the stop on Saturday. If, for example, the use on Saturday came from inadvertence, or because the defendants thought that the extension did not expire until the end of that day, the use on that day would be deprived of all force as evidence of an election, as we have held to be the case of the use on Monday; and there may have been other explanations of that use which would result in the same conclusion. But no explanation was given at the trial as to the use made of the machine on Saturday, and in this state of the evidence the plaintiff had a right to go to the jury on the question whether the use of the stop on Saturday showed an election to take the stop, and that the defendants afterward changed their minds, and wrote the letter declining it on Monday.

Exceptions sustained.20

SECTION 4.-"CASH SALE"

LEVEN v. SMITH.

(Supreme Court of New York, 1845. 1 Denio, 571.)

Error to the Kings common pleas, where Smith & Hartshorne brought replevin in the detinet against Leven for a quantity of boots and shoes. Plea, non detinet.

On the trial, the plaintiffs proved that on the 18th day of January, 1845, the defendant, who kept a store in Brooklyn, called at their

20 Compare Sale of Goods Act, § 18, rule 4, with Sales Act, § 19, rule 3. A. contracted to ship a gluing machine to B., who was to use it for thirty days after June 1, and then, if it was unsatisfactory, he was to return it; but, if it was satisfactory, he was to have an election either to pay $350 cash for it, or to pay $125 cash and the balance in monthly notes of $50 each; A. holding title to the machine until it was paid for in full. The machine was delivered in May, and in August B. wrote that he could not use the machine, and asked for instructions as to where to ship it. A. brought an action for the price. Should he recover? See Isaacs v. MacDonald, 214 Mass. 487, 102 N. E. 81 (1913) and note, 18 Columbia Law Rev. 372.