Crenshaw v. Wilkes , 134 Ga. 684 ( 1910 )

Evans, P. J.

(After stating the foregoing facts.) The Mecklenburg Iron Works sold the machinery to Keener with knowledge that Keener was purchasing it for resale to the mining company. The vendor knew-that Keener was to accept, in payment for the machinery, a pro tanto discharge of his indebtedness to the mining company, and shipped the machinery at the request of Keener to the mining company. The vendor, Keener, and the mining company were aware of the various inducements of the parties influencing each one’s participation in the transaction. The entire transaction, while not constituting a tripartite agreement, did involve two sales, that is a sale and a resale, so intimately connected and interwoven in negotiation, consideration, and execution that it would be a fraud to inject an clement unknown to one of the participants in the transaction, and which would have the effect to impose upon that participant a liability not contemplated nor disclosed in the original transaction, and antagonistic to its general tenor and effect. If the vendor intended to reserve title to the machinery sold to Keener, she should have informed the mining company of such intention. lier consent to sell to Keener with a knowledge that Keener intended -an immediate resale to the mining company, and the shipping of the machinery to the mining company on Keener’s request, was an assurance to the mining company of Keener’s right to convey an unincumbered title. Otherwise it would be allowing the .vendor to induce and accomplish the trade upon her apparent assent that Keener had full title to convey, and then allow her and Keener to secretly contract to the contrary. The circumstance that the consideration of the sale from Keener to the mining company was an existing debt does not change the complexion of the transaction. The mining company may have preferred to buy elsewhere, or machinery of a different type or of less value; it did cancel its debt against Keener, ]iaid the freight, and installed the machinery at considerable cost. The ease is not that of a creditor who simply takes additional security for an antecedent debt. Relatively to thq vendor the mining-company was a bona fide purchaser.

A vendor may make either an absolute or conditional sale of liis goods. He can not reserve the title and, at the same time, empower bis vendee to sell. His authorization of a sale by his vendee is inconsistent with the reservation of title in himself, which forbids a sale. If A buys personalty from B and gives to B a note for its purchase-price, with the stipulation that the title to the personalty shall remain in B until the note is paid, and B authorizes A to sell the personalty and bring him the proceeds, a sale by A to an innocent purchaser conveys a good title, although A may not account to B for the proceeds, and the reservation of title note may have been duly recorded. Tucker v. Mann, 124 Ga. 1003 (53 S. E. 504); Clarke v. McNatt, 132 Ga. 610 (64 S. E. 795). The principle decided in these cases is applicable to the case at bar; and we think the court erred in directing a verdict for the plaintiff upon the agreed statement of facts. We will not discuss the question of registration and constructive notice, so ably and elaborately argued in the briefs, because we arc of the opinion that, even though the conditional bill of sale was properly executed and recorded in time, under the tacts the plaintiff could not legally prevail. Judgment reversed.

All the Justices concur.