BILLS OF LADINO ; RES PERt'T DOMINO.
Transfer of Title between Buyer and Seller. No one but the owner can give title. If the owner is by his conduct precluded from deny ing the seller's authority to sell, the buyer may acquire a valid title although the seller has neither title nor authority to transfer title. See ESTOPPEL ; FACTOR.
A cash sale is a kind of a sale where the payment of the price is a condition of the transfer of title to the buyer ; Williston, Sales, 543.
A common kind of transaction where the transfer of the property in goods is condi tional on the buyer's performance of his prom ise is where the buyer is by the terms of the bargain to give negotiable paper. The usual case is where a bill of lading for the goods is sent forward by the seller with a draft for the price attached. Payment or acceptance of the draft is a condition preced ent to the buyer's right to the possession of the bill of lading. See C. 0. D.
See MARKET OVERT.
Conditional Sales. As in every other kind of contract, so In a contract to sell, there may be inserted such conditions as the parties agree upon. The typical case of conditional sale is a sale in which the transfer of title Is conditional upon payment of the price. Though sales upon other conditions may readily be imagined, the practice of selling goods with a retention of the title until pay ment of the price is so common that the ordi nary meaning of the term "conditional sale" is confined to sales upon this particular con dition. The seller is not estopped by his conduct In possession of the goods to the buyer upon such a bargain from assert ing his title against one who purchases from the bluer, relying upon the apparent title of the latter ; [1895] 1 Q. B. 653 ; Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 285 ; Lorain Steel Co. v. Street R. Co., 187 Mass. 500, 73 N. E. 646 ; Clayton v. Hes ter, 80 N: C. 275 ; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626; Basis v. Stewart, 109 Ind. 371, 9 N. E. 403. The effect of the decisions sustaining the seller's title is modi fied in many jurisdictions by recording acts, and In some jurisdictions, a bona fide purchas er from the buyer is protected ; Van Duzor v. Allen, 90 Ill. 499; Lincoln v. Quynn, 68
Md. 299, 11 Atl. 848, 6 Am. St. Rep. 446; Dearborn v. Raysor, 132 Pa. 231, 20 Atl. 690; Greer v. Church, 13 Bush (Ky.) 430. In Louisiana a conditional sale is wholly impos sible ; Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121. La. 152, 46 South. 193. See infra. In Harkness v. Russell, su pra, Bradley, J., discussed the cases fully.
Creditors of the seller, after the property has been delivered to the buyer, can have no right to take the property from the possession of the buyer, at leaSt while he is in no default upon his contract. The buyer's right is a property right and the seller's creditors, no more than the seller, can disturb it, though the seller also has an interest in the property which should be subject to sale on execution ; McMillan v. Lamed, 41 Mich. 521, 2 N. W. 662. The buyer's creditors, apart from estop pel or statute, can take no greater right than the buyer had. The interest of the buyer may be subjected to the claims of creditors; Newhall v. Kingsbury, 131 Mass. 445, but not the goods as such. In some jurisdictions, the rights of a buyer's creditors have been treat ed in the same way as a mortgagor's credi tors, namely, pay the portion of the price re maining due and by so doing acquire the right to treat the full ownership as belonging to the buyer ; Bingham v. Vandegrift, 93 Ala. 283, 9 South. 280; Hervey v. Dimond, 67 N. U. 342, 39 Atl. 331, 68 Am. St. Rep. 673; Towner v. Bliss, 51 Vt. 59 ; United Shoe Ma chinery Co. v. Holt, 185 Mass. 97, 69 N. F. 1056; Pearne v. Coyne, 79 Conn. 570, 65 Atl. 973. An assignee for the benefit of creditors under a common law assignment can stand in no better position than an individual credi tor; Adams v. Lee, 64 N. H. 421, 13 Atl. 786; Gayden v. Tufts, 68 Miss. 691, 10 South. 53; Campbell Printing Press fit Mfg. Co. v. Walker, 114 N. Y. 7, 20 N. E. 625. By the ex press terms of the Bankruptcy Act, the trus tee takes all the property "which might have been levied upon and sold under judicial pro cess against" the bankrupt. In each case the question must depend upon the rights which the state law gives to creditors ; York Mfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782.