The Birmingham age-herald., 1908-01-09
DECISION GIVEN
 IN CULLMAN CASE Court of Appeals Acts on Fuller
 Receivership INTERESTING TEXAS CASE Court Holds Case For Damages For Disease Contracted While skin-
 hing Calf Should Have
 Gone To Jury.

circuit court of appeals.
 Sprague Canning Machinery com pany, petitioner, vs. Asa B. Fuller, re- ceiver, respondent Petition to superin- tend and revise, from the district court of the United States for the northern district of Alabama. Before Pardee, Mccormick and Shelby, circuit judges.
 Mccormick. circuit judge, delivered the opinion of the court:
 The respondent, Fuller, represents the Cullman Fruit and Produce association, a private corporation, which was adjudged bankrupt. The bankrupt is an Alabama corporation, having its place of business at Cullman, and it's business was to pur- chanse, ship and sell fruits and produce l.. A. Fealy was general manager of the association and its largest stockholder, virtually owning the business The proof shows that he claimed to have, under the bylaws. power to carry on all kinds of business in which the corporation en- gagged. The Sprague Canning Machinery company is an Illinois corporation, en- gagged in the manufacture of canning ma chinery. On May IA, 1906, it entered an order on behalf of the bankrupt corpora tion for certain machinery with this stip- ulation: All the above goods for deliv- cry f. 0. b. cars Hoopston, H.. June l, 1906, for the sum of $500 cash; settle ment to be made by your payment of our 10-days' sight draft made at the time of shipment with bill of lading attached" 2" The machinery was shipped June with draft attached to the bill of lading. On June A Fealy, manager, wrote the peti- tioner: We do not care to pay exchange on drafts. and if you will release draft we will send check for amount due oS ma- chinery" and on June 26 sent telegram in these words: Release car. Will send check" Acting on the promise to send the check, the Sprague company instruct ed the railroad to let the Cullman asso- citation have the goods. which the rail- road did. The check was not sent, and no money was then or ever afterwards paid on the goods. On August l, H. o. Crane, treasurer of the Sprague company, went in person to Cullman and saw MT. Fealy, and demanded the machinery or the money, when MT. Fealy acknowledged that the machinery belonged to the Sprague company but explained that they were just beginning to put up their goods; that he hadn't the money then, but would have it in few days, and such nego- tiations were had that the Sprague com pany allowed the Cullman association to retain and use the machinery for a time 41.- money was to be paid on August 15, and the rest on September 1. The pay ments were not made. About September or Colbert, another representative of the Sprague company, went to Cullman, and demanded a settlement or the re- moval of the machinery. Fealy again ad- mitted that the machinery was the prop erty of the Sprague company. The prop erty was unidentified and another agree ment was entered into which gave the Cullman association a lease on the ma- chinery for one year and providing for certain installment payments, aggregating the price of the machinery, with the stip- any one of the installments the whole amount should become due, and in the event of the payment of all the install- ments with interest as they became due the Sprague company was to execute a bill of sf'e to the Cullman association covering this machinery. This instrument was dated September '. 1906. None of the payments were made.
 Fuller Appointed Receiver.
 On February 2, 1907, petition was filed by creditors seeking to have the Cullman association adjudged bankrupt and the respondent, Fuller, was appoint ed receiver. On July 19, 1907, the Sprague company applied for an order requiring the respondent as receiver or trustee sur render the full possessi noof the property to the petitioner. The court ordered the petitioners application to be dismissed
 It is contended for the respondent that the transactions had prior to August l, 1906, vested the absolute title to the ma chinery in the Cullman association, and that there could be no reclamation of 1t by the Sprague company under the lease or conditional sale contract executed Sep tember ', 1906. Furthermore, that the contract would not be effective because not executed by authority of the corpora ton. The controlling question is: "D1d the title to the property in fact and in law ever pass from the Sprague Canning Machinery company into the Cullman Fruit and Produce association?" The whole transaction from start to finish shows an intention not to part with the title until the purchase price was paid There is no doubt about the proposition that where personality is sold for cash on delivery, the payment stipulated for is a condition precedent, mad unless complied with, the seller may reclaim the prop erty and where the buyer is by the con tract bound to do anything as 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 pos session of the buyer And where goods are sold to be paid for in cash or securi- ties on delivery, the sales are conditional only, and the vendors are entitled to re- take the goods even after delivery, if the condition was not performed, the deliv- cry being considered as conditional. What ever the law may be with regard to a bona fide purchaser from the vendee in a conditional sale, there is circum- stance in the present case which makes 1t clear of all difficulty. The appellant In the present case was not a bona fide pur- oho xx,ifb aOIIo pany continuously claims title to this