Peek v. Heim

This was a feigned issue under the sheriff’s interpleader act. The pivotal question is, whether the property levied upon by the sheriff had been consigned to Hill, the defendant in the execution, as the factor or consignee of Peek & Son, to be sold by him on their account, or whether the transaction amounted to a conditional sale with an attempted reservation of a lien for the price. The court below took the latter view of it and instructed the jury accordingly. All of the assignments of error bear upon this point.

We see no error in the ruling of the court. The whole contract appears from the two papers, the one headed “ Terms of Consignment,” and signed by Peek & Son, and the other headed “ Consignee’s Agreement,” and signed by F. K. Hill. It is true the words “consignor” and “consignee” appear sufficiently conspicuous, but these are merely labels which the parties have placed upon the transaction; we must look within to see its real nature, and it is immaterial what the' parties designate it. We thus learn from the “Terms of Consignment ” that the piano named and invoiced, and consigned to Hill, “is the property of Peek & Son, of New York city, and is to remain their property until fully paid for; and the said Peek & Son ship and deliver the same upon the express condition that F. K. Hill of Sunbury, in the state of Pennsylvania, shall remit the sum of one hundred and sixty-five dollars to them therefor, within.....from the date hereof, or return the said piano to them at the expiration of the said time, at the expense of the said F. K. Hill.” Then follows the “Consignee’s Agreement,” by which Hill acknowledges having received the piano on consignment; that it is to remain the property of Peek & Son until paid for, and if not paid for, to be returned at his own expense, etc.

That this was not an ordinary transaction between consignor *506and consignee is too plain for argument. Where goods are consigned to a factor for sale, they remain the property of the consignor and are not subject to the debts of the factor, and no ingenious contract is required to protect them from his creditors. There is nothing upon the face of the papers to indicate that Hill was to sell the pianos for the account of Peek & Son, as their factor. On the contrary it was manifestly a sale to Hill, with an agreement that the title was to remain in Peek & Son until the price was paid. The arrangement was good between the parties, but worthless as to Hill’s creditors. The secret lien attempted to be created cannot affect them. It would seem almost a waste of time at this late day to cite authority for so evident a proposition. I will refer, however, to Thompson v. Paret, 94 Pa. 275, where it was said by our late brother Tktxnkey : “ Whatever the form of the agreement, if its purpose was to cover up a sale and preserve a lien in the vendors for the price of the goods, it was void as respects creditors, whether the credit was given before or after the delivery of the goods. A consignment for such object was no better than any other device.” See also Stadtfeld v. Huntsman, 92 Pa. 53 ; Forrest v. Nelson, 108 Pa. 481. These decisions are in harmony with a long line of cases which are familiar to the profession. What we have said covers all the assignments of error.

Judgment affirmed.

On October 14,1889, a motion for a re-argument was refused.