The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-01-24


CODE. -
Harris, {. j., Judd and McCzHy, ~.
Opinion By Judd, J.
Il appears by the submission that a freprooI
safe was delivered by PLAINTIFF agent, @. o.
Berger, TO f. Strehz, IN Honolulu, who signed
81 HoSoLrLU, May 80, 1879.
Raymond & Wiltshire, San Francisco, Cali
fOrnia Please ship az directed one No. 3 Mac
neale & Urban f%reproof safe, Of the dimensions
specified below, marked to f. Strehz, town OF
Honolulu, Hawaiian Islands, via schooner, for
which delivered at wharf or depot in HOnOlulu)
/ agree 70 pay 70 your order the sum Of (Sl65)
one hundred sixty-fve dollars in U. 5. gold coin,
ss follows Will remit 90 days after arrival Of
safe. Letter E. Strehz. And it is agreed that
you do not part with nor relinquish your claims
on OF title TO said safe until all deferred payments
or notes are fully paid, and in default Of the pay
ment for the safe as agreed, you or your agent
may, without process of law, take possession Of
and remove said safe and retain any payments
that may have been made on account OF said safe,
in lieu Of the use Of said safe, or charges and
damages on same. It is further agreed that all
payments are TO be made free Of expense to Ray
mOnd 4 Wiltshire, at their office in San Francis
CO, OF they, at their option, may draw on US as
payments fall due for amount due and exchange
added.
"a Outside dimensions 36I inches high. 26 in.
wide, 231 in. deep. G. o. BERGEE, Agent.
Strehz filed a petition in bankruptcy August
5th, 1879. The safe was then in his possession,
and it passed to his assignees in bankruptcy. He
had not paid the agreed price or any part Of it.
The plaintiffs claimed possession Of the safe Of
the defendants, who are Strehz's assignees in
bankruptcy. and the question is whether they
are entitled to il.
This question Is one that has had much atten-
ton from courts and text-writers.
The purchaser IN the case at bar agrees that
the sellers . do not part with Dor relinquish their
claims on OF title TO the safe until all deferred
payments OF notes are fully paid - thus making
It clear that Il was the intention of the parties
that IL was a sale conditioned on the payment,
and that the time when the title was to pass to
the purchaser was when payment was fully made.
Benjamin on Sales, section 800, has the fol-
lowing rule - Where the buyer Is by the con-
tract bound TO do anything as a condition, either
precedent or Concurrent, on which the passing OF
the property depends, the property will not pass
until the condition be fulfilled, even though the
goods may have been actually delivered into the
possession Of the buyer"
The note 20 the above text is, = Where goods
are sold a. a fixed price, 10 be paid on a certain
day, and delivery Is made upon an agreement.
express or implied, that until the price Is paid
the title Is TO remain in the vendor, payment is q
condition precedent, and until performance the
property j. not vested in the purchaser" The
citations fully support the text.
Blanchard IS. Child, ! GRAY l55. Here an
omnibus was delivered under an agreement that
the purchaser might use it, and that 1t should
become his property on the payment Of $50,
but ii he failed 70 pay that sum, IL should remain
the property Of the plaintiff, and he should pay a
reasonable sum for Its use The purchaser took
the omnibus, repaired it, used it, painted bis
name on it when II was attached and sold on
execution Of third party, it was recovered by re-
plevin at the suit Of the seller The Court held
that . . the sale OF the omnibus on a condition
which bad not been complied with by the ven
dee vested no title IN him which could pass by
the sale on execution 20 the defendant. The
right OF property still remained in the plaintiff.
In the case Of Burbank vs. Croker, Z Gray
I55. the same principle Is affirmed but the
Court distinguishes a sale Of individual articles
in a country store, where the plaintiff might be
estopped 10 assert any right adverse 10 a subse-
ouent purchaser, be having placed the goods in
the hands Of a dealer on the understanding that
they were to be thus used.
In Day ". Bassett, l02 Mass. AS, the buyer
OF machinery. who held it on condition that it
should remain the property Of the seller until the
price was paid, sold IL 70 a third person, and
afterwards rendered the price to his seller, who
had never demanded payment. Held upon the
tender. although 10 was refused, the title passed
to third person, and the Court, Chapman c.. j.,
said that the condition had been fulfilled, and
the purchasers title completed by the tender.
See also Zuchtmann W. Roberts, lO9 Mass. So,
and Benner ". PuHer, ia Mass. 377 (IST4),
where the Court held that when by agreement
for sale the title y TO pass not upon delivery but
upon a subsequent payment, the vendor, the
vendee being IN default. may retake the goods
from one claiming through the yendee.
In Porter vs. Pettengill. II N H. 299, Parker,
G.. j.. said that as the purchaser by the terms of
his receIPt was to pay for the cooking stove and
furniture 80 much a month or return 1t, it was a
bailment until the price was paid, and the sellers
did not intend to part with the property until
they received their pay.
In Mcfarland ". Farmer. 40 N. II. $50,
horses had been exchanged, SOule. one of the
parties. agreeing 70 pay SO IN addition, and il
was verbally agreed that the horse received by
Soule should be the plaintiff until the money
was paid. The horse was attached at the suit OF
a third party and sold. Sargent, j., said - AS
between the parties TO the contract the property
will not be presumed 70 pass, against the express
agreement Of the parties that it should not pass
but on the other hand, 1t Is the policy Of the Law
% carry out and efectuate the intent Of the par
ties where that can be done without prejudice to
the rights Of third parties whose interests may
have become involved in the subject matter Of
the contract
In New York State. Herring vs.. Hoppock, Is
ny 400, the plaintiff brought an action against
the defendant for wrOngfully taking and convert
ing an iron safe. The plaintiff delivered the safe
to the purchasers, who signed the following
agreement:
"NEw YoRK, Feb. 9th. 1852.
Received from Silas c. Herring one Salaman-
der patent sale NO STU delivered 20 Us this
day under a bargain for the sale thereof. and for
which We have given our note at SIX months for
Seas. And il Is expressly understood that Her
ring neither parts with, nor do We acquire, any
title 10 said safe until said note is fully paid
and IN case Of default in the payment thereof at
maturity, said Herring is hereby authorized to
enter oGr premises and take and remove said safe
and collect all reasonable charges for the use Of
the same. BROOKS 4 HOPKINS"
Brooks & Hopkins failed to pay their note
The safe was levied upon under two executions,
one in favor OF the defendant HOpPOck and the
other 10 favor Of one Jackson. After levy, and
before sale, the plaintiff Herring notified the
officer OF his title 70 the safe
The Court, Paige. j., said The special
agreement under which the safe was delivered BY
the plaintiff to Brooks * Hopkins was nothing
more than an executory contract Of sale, to be
completed ca the payment at its maturity Of the
note for S235 given for the stipulated price Of
= "a Ih.a arraamanr naithar dlEe.ted The