Reference

Full Case Name

George E. Ott v. Virtue C. Sweatman

Cited By

36 cases

Status

Published

Syllabus

Sale— Conditional sale—Bailment. The courts, in determining whether or not a contract is one of bailment, or one of sale with an attempt to retain a lien for the price, do not consider what name the parties have given to the contract, but what is its essential character. Where an agreement in writing is essentially a contract of sale, and not of bailment, the court will construe it to be a contract of sale, notwithstanding an express stipulation in the agreement that “ it is distinctly understood and agreed that this is not a contract of sale, conditional or otherwise.” Where there is an actual bailment, though coupled with the right in the bailee to purchase the goods during the continuance of the bailment, the goods are not liable to an execution against the bailee, but where there has been a sale, coupled with an attempt on the part of the seller to retain a lien for the price, the goods in the buyer’s possession are subject to a levy under an execution against him. An agreement in writing between a manufacturer and a brewer provided for the erection of an ice machine on foundations to be built by the owner of the brewery, who was to pay the manufacturer a certain sum of money in stipulated installments. There was an express condition that “the title, ownership and possession of said machinery and plant, does not pass until all of the said payments of said sums of money ” have been made, “ and when the last of the above sums of money have been paid, and not until then,” the manufacturer will give the brewer “a bill of sale for the said machinery and plant, the consideration whereof shall be the amount of the above mentioned sums of money.” The manufacturer reserved the right to remove and sell the machinen- and the plant on default, and to collect the balance due less the proceeds of such sale. ' It was also stipulated that “ it is distinctly understood and agreed that this is not a contract of sale, conditional or otherwise.” Held, that the contract was a conditional sale and not a bailment, and that the ice plant could not be claimed by the manufacturer as against an execution creditor of the brewer.