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and character of the powers and privileges transferred, but the name is itself determined by the number and character of the powers intended by the parties to be transferred. Therefore, in any given case the inquiry is not directly whether the transaction was intended to be by name a sale, or a bailment, or a pledge, but rather, what powers, etc., were intended to be transferred. The answer to this question can not be determined by any rule of thumb. Each case must be decided upon its own particular circumstances. All that can be said is that the real or apparent intent of the parties will control and is the thing to be determined. If the parties intended the transaction to pass the ownership of the property the courts will call the transaction a sale and give it effect as such. If they intended to convey powers less than complete ownership the courts will call it something less than a sale and give it only such effect as was intended.

-By Whom Distinction Is Made.—The real intention of the parties being the determinative issue, it would seem properly a fact to be determined by the jury.

It is the province of the court, however, to decide, and to instruct the jury accordingly, just what rights and powers the parties must have intended to transfer to have intended a transfer of ownership and, conversely, what reservation of powers in the transferor constitutes a withholding of ownership from the transferee. Courts sometimes speak as though such reservation or transfer of particular powers showed intent. This transfer or reservation of particular powers constitutes as a matter of law a transfer or retention of ownership because it is incompatible with the legal idea


6—Rauber v. Sundback, 1 S. D. 268; Crosby v. Del. & Hud. Canal Co., 119 N. Y. 334; Id. 128 N. Y. 641; Id. 141 N. Y. 589; Brown Bros. v. Gilliam, 53 Mo. App. 376;

Cook v. Lion Fire Ins. Co., 67 Cal.
368; Webster Bros. Milling Co. v.
Bingham, 14 Ariz. 50.


of ownership in the other person. The lack of precision in speaking of the matter leads some courts to say that because the parties intended certain powers or duties to be in one party the title is in him, while other courts instruct the jury that if they find those particular powers or duties were intended to be in one person they must find that the parties intended title to be in him. The one thus appears to make title a matter of determination by the court from admitted facts, the other appears to leave it to the jury as a matter of intent. But it may be observed that the result is the same whether the court deduces it for itself from preliminary facts already ascertained, or orders the jury so to find upon the same preliminary facts. It is essentially these preliminary facts, that is to say, the particular powers and privileges which the parties intended to pass or not to pass, which must be ascertained by the jury. If the intent to pass certain rights and powers is admitted by the parties, or the court thinks it could not be disputed, the court can decide what name shall be given the transaction, as a matter of law; but if there is dispute as to what rights and powers the parties intended to pass, the case should be submitted to the jury with instructions as to what name they shall give the transaction accordingly as they find that the parties intended to pass or not to pass certain rights and powers. . When, however, the entire transaction is in the form of a written contract, the court will “construe" the contract and decide for itself the question of what particular rights, powers and liabilities the parties intended to pass, and thus practically take the case from the jury entirely.'

-Rules for Distinction. The courts have laid down a number of propositions as to what particular legal

7-Fleet v. Hertz, 201 Ill. 594, 94 Am. St. 192, See the peculiar combination in Ginsburg v. Lumber Co., 85 Mich, 439; Reissner v.

Oxley, 80 Ind. 580; D. M. Ferry & Co. v. Hall, 188 Ala. 178, L. R. A. 1917 B 620

containing lengthy annotation.


powers the parties must have intended to transfer to constitute change of “ownership. These all, however, have the common characteristic that they show which person was intended fundamentally to control possession and enjoyment of the thing.

The law is simple enough, but it is obvious that in many cases there is no way of determining absolutely what the parties did intend in this regard. The issue becomes, therefore, merely a conclusion of mind from the particular facts and the facts are apt to be so inconclusive that two wholly fair and able minds may differ absolutely. It is this possibility of difference of opinion by two courts on essentially similar cases that makes much apparent conflict. It is not, however, a conflict of law, in the sense of a rule of determination, but only a difference of conclusion as to real intent. In such cases it is highly probable that the parties had no real intent as to title at all; did not think of anything beyond the immediate and obvious facts of the transaction. A finding of “intent,” therefore, is only presumptive, a legal construction from the facts. Such constructive intent is properly a matter for the court rather than for the jury, which latter is supposed to ascertain only actual facts. But while, as noted above, very many courts do, themselves, make the finding as a matter of law, there are no established rules of presumption to guide them. What rules there are, simply declare what intent shall, or shall not, constitute a transfer of ownership, leaving court or jury to ascertain as matter of conclusion in each case what was the particular intent.

-Bailment. Thus, if the parties intend that the particular thing transferred shall, sooner or later, be returned to the transferor the transaction is not a change of ownership and not, therefore, a sale. And this is true even though the transferee of the thing is to do something to it, even to the extent of completely altering its form. 10 On the other hand, an intention that the transferee need not return it constitutes a transfer of title despite the fact that he is to return something of like kind, or any equivalent.11 It must be remembered, however, that the real intention of the parties in this respect is often very difficult to decide and is the true cause of dispute in the case. 12

8—The process of forming a judicial opinion from the facts, without guiding rule, is shown in

Ex parte White, L. R. 6 Ch. Ap.
Cas. 397, 19 Wkly. R. 488.

-Sale on Approval.-If the parties intend that the transferee of the thing shall have the option to return it or to keep it, the question of ownership depends upon a further fact of intention, namely whether the parties intend the thing to be returned unless the transferee shall choose to keep it, or to be kept by the transferee unless he shall choose to return it. The first intention does not pass title until the option is exercised and is usually called a "sale upon approval” or some synonymous phrase.18 The second intention passes title until the option is exercised, and is usually called something to the effect of a “sale with privilege of return.''14* As one court said,16 An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined; in the other the property passes at once subject to the right to rescind and return."

9-Bretz V. Diehl, 117 Pa. St. 13—Fleet v. Heitz, 201 Ill. 594, 589, 2 Am. St. Rep. 706.

94 Am. St. 192, (court thought in. 10—Wheat delivered to trans- tent very clear); In re Miller & feree to be manufactured into Brown, 135 Fed. 871; Hallidie v. flour and returned held to have

Sutter St. Ry. Co., 63 Cal. 575, remained the property of the

(court itself appears to have detransferor, Mallory v. Willis, 4

termined the question of intent). N. Y. 76.

11-Bretz v. Diehl, 117 Pa. St. 14–Gottleib v. Rinaldo, 78 Ark. 589, 2 Am. St. 706; Norton V. 123, 6 n. 8. 273. In re Miller & Woodruff, 2 N. Y. 153.

Brown, 135 F. 868; Hallidie v. 12-As an illustration compare Sutter St. Ry. Co., 63 Cal. 575. the cases of Morton v. Woodruff, 2 N. Y. 153, and Mallory v. Willis, 15—Hunt v. Wyman, 100 Mass. 4 N. Y. 76.

198. *See Uniform Sales Act, Section 19.

So also when the parties have transferred possession with the intention merely that the transferee shall either seil the goods to another and return the money, or shall return the goods, the law is that title has not passed and there is no sale. The person in possession is not owner, but only an agent with authority to pass the title. Only when he does pass it is there a sale. Conversely, when the transferee of the goods is not to return them unless some contingency happens, even though he is to pay for them only as he sells them to some one else, the law is that title has passed. The former is usually called “consignment for sale” and the latter “sale with privi. lege of return”. -Pledge.

If the transferee is expected and

intended by the parties to return the thing transferred unless the transferor shall fail to do something, (such as repay a sum of money received from the transferee, within a stated time,) the transaction is a “mortgage” or “pledge” rather than “sale” and does not pass title. The fact that the parties have themselves called the transaction a “sale” has comparatively little effect upon judicial determination of their intent at any time, but it seems to be of especially slight effect when the issue is between a sale or mortgage possibility.

Gift. Exchange.-To constitute a sale there must be not only a transfer of title, but also a reciprocal transfer of money, or of something else on which the parties have placed a money value. This money recompense is not necessary to a transfer of title, but it is necessary to constitute the transfer of title a “sale". If the monetary recompense is absent the transaction is called by some other name. If there is nothing given in exchange for the title at all, the transfer is usually denominated

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