Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-06-12

the extent OF all the property owned bv
them and subject to their debts
howell d Son vs.. Boudar. trustee Az
nImed. opinion by Rely, ].
me PRINCIPLES involved in this caze arc
discussed and determined in the next
opinion following:
AGENCY OR SALE.
Arpuckie Brothers VS.. Gates e. Brown.
Aihrmed. Opinion by Rely. ].
me question involved Is, whether the
written agreement between the narties
create mere agency In q. q B. to sell
OF constitute sale of the coffee 70 them.
putports on It's face 20 be a special
sesi'hS FACTOR appointment" and TO con-
stitute G. &c b. factors OF ArbuolxIa
DrotheTs' and its msin provisions are.
tnat all goods consigned them on their
reQulsluon, until sold in regular COURSE
Oh business. shall remain the propertv
Oh ArDuchles, with title In them, and ba
merely held by @. g. Il. as their factors.
mat they shall never purchase the goods
lor their own account; that q. a. II
ShaH sell and bill In their own name bpt
ohIy at such prices and terms as Ar
DueNAes may give them from time TO
u .,e. Ihen follow a number Of stipula-
ions lrreconcilable with factorship or
agency between the parties.
u. a. b. are required not onlv n nc
sumo all risk as to credit of purchasers
from them, and to make all collections
AT their own expense, but to guarantee
the SAFE OF each consignment" and nav
ment therefor in sixty days; To remit
nun amount OF each "consianmAnt - loss
paltry commission" in that period
whether the whole consignment have
Deen sold or not. and whether proceeds
Oh SAFE have been collected OF not: to in
sure Arouckles against decline in price
Oh unsold goods. and be entitled to anv
advance IN price. No provision made for
returh OF unsold goods, nor for reclama-
tion or moneys paid by G. & Il. for the
cohse; no account of their sales Is re-
CURED TO be rendered, nor any informa-
tlon as to the persons to whom G. & b.
may sell the goods. but G.. e. j. became
primarily the absolute debtors of Ar
buckles, whether they ever dispose Of
them or not. They are required to pay
LOT them at price fixed at date of each
consignment, and at fixed time.
whether sold or not, or whether proceeds
OF sale have been collected or not
held: This was not an ordinary trans
action between consignor and consignee
Where goods are consigned TO factor
Tor sale they remain, until sold, the pro-
perry or the consignor, and are not sub
ject 10 the debts of the factor; and no in
eenious contract is required to protect
them fnom his creditors. The agreement
was an attempt to accomplish what can
not be done; 10 make sale of personal
property, and at the same time
constitute the buyer simply an agent
OF the seller to hold the pro-
perty till paid for. The agreement was
in substance and effect a sale, and must
be so declared. The courts look beyond
mere names to see the real nature of an
agreement, and to determine from all its
provisions taken together. The legal eff
feet of the whole is sought for--the form
of the instrument is Of little account
HEREFORD VS.. Davis. 103 u. S., 1885, Her
Yey vs.. Richmond Iron and Locomotive
Works, 20 u. s., 664; Sturm VS.. Boxer, l50
U. S., $40.
Whenever the result is that the trans
fierce is the primary debtor, even where
title does not pass out of consignor till
sale, the sale by consignee will necess-
tate a previous transfer to him, and the
consignment is thus changed into a sale.
Tiedman on Sales section s. Prohibition
70 sell below trade price or the reserved
right to fix from time TO time, the price
at which the buyer shall sell the goods is
a common device 20 prevent competition
and maintain prices, but has little ten
dency to prove agency, and cannot neu-
tralize the distinct elements of a sale in
other provisions of the agreement. See
Williams, &C., VS.. DrummOnd Tobacco
Company, a S. w. r., 1876; Mack VS.. same.
67 n. w. r.. ia; ArbuclIle Brothers VS..
Kirkpatrick, IS Tenn, 22l.
The cases cited by counsel for appel
liant are not analogous to this, and ]
do not sustain the contention that agree
ment created mere agency and not
sale.
2 Concedng. for the purposes of this
case, that, although the agreement con-
sttuted a sale and not an agency, there
was a valid reservation OF title until
the coffee was paid for, it was still ne
cessary that the agreement be docketed
or else 1T was void as to creditors and
purchasers for value without notice
Code, section 2462, as amended.
A trustee in a deed to secure credi- /
tors is a purchaser for value. Chapman |
VS.. Chapman, 81 Va, 400, and cases |
there cited. The burden to prove no
tice 20 the trustee was on the appellant. |
While the fact of notice may be in |
ferred from circumstances, as well as |
proved by direct evidence yet the proof |
must be such as TO affect the conscience |
OF the purchaser, and be so strong and |
clear as TO establish mala fdes. Vest |
VS.. Niche, 81 Graft, 149; Morrison VS. |
Bausemer 80 ID, 22j Johnson's Execu-
tor VS.. National Exchange Bank, 80 Id, |
i7S. The evidence in this case does not
go to that extent. There is no proof that
he trustee had ever seen the agree
nent or knew of its conditions till after
he assignment; and he testifies that the
conditions printed at the foot of the in
voices were torn off before they wer,
urned over to him. and there is no evi
lence that his statement was untrue
DEDICATION OF STREETS, ETC.
Jity of Norfolk VS.. Nottingham. Al
firmed. Opinion by Keith, p.
The Atlantic Iron Works surveyed anl
divided into lots. streets, and alleys, "a
hown by maps returned 10 the County
Court Of Norfolk county, certain land
,Wned by IT, September /, 1870, it sold
Il auction 800 feet and February 4, 1874,
he remainder of its land. on the south |
ide of Front street, embracing the space
laimed To be occupied in part By
treets-i. e., the sales were Of a con
inuous frontage running eastwardly on
he south side of Front street without
egard to streets, alleys, etc. Quite a
lumber of lots were sold September q
$40 in various parts of the property, ~
ccOrdance with said map. Some time
uring the sale, however, the auctioneer
lade public announcement, by authority,
hat said map would be corrected, and
IA streets appearing thereon south Of
'front.' street would be effaced, and a
zap, so corrected was then exhibited,
hereby revoking, so far as the company
ould the dedication of part OF its land
D public uses.
The purchasers of lots are not parties
D this suit, and their rights cannot be
eeootod II NAV he that fha dedication