First National Bank v. Cook Carriage Co.

Woods, J.,

delivered the opinion of the court.

It is impossible to bring our minds to the conclusion that the sale of the rockaway and delivery-wagon by the appellee to J. C. Head & Co. was a conditional sale, and that there was a retention of title by appellee. Those provisions in the contract of sale which counsel for appellee construe to be conditions for passing of title, are merely the terms of the sale. The sale was perfect, complete, and the title to the property was clearly .in J. C. Head & Co. from the date of shipment. Grant that J. C. Head & Co. improperly, or even fraudulently, obtained title, never intending to pay cash at the end of ten days, or to give their note at four months, and still it remains true that there was a sale of the property, by which they obtained title.- It is not open to dispute that such sales are not absolutely void, but are voidable only at the election of the party imposed upon. It follows, irresistibly, that if J. C. Head & Co., the vendees, while in possession of the goods, and in the usual prosecution of their business •as retail dealers in vehicles, and before the carriage company had taken any .steps to disaffirm the improperly, or fraudulently, made contract of sale, sold the rockaway and delivery-wagon to a purchaser in good faith, for value, such sale will be valid as against the carriage company.

Reversed.