
    First National Bank of Greenville et al. v. Cook Carriage Co.
    1. Sale. Reservation of title. Agreement to give note.
    
    Under an agreement by which the purchaser of personal property is to settle promptly, on receipt of bill of lading, by note or draft payable in four-months, or in cash within ten days, at an agreed discount, there is no reservation of title in the seller, and, although the terms be not complied with, the title passes by delivery, and the seller cannot maintain replevin for the property as against one who has bought from the purchaser.
    2. Same. Fraud of buyer. Title. Bona fide purchaser.
    
    Although the purchaser improperly, or evén fraudulently, obtained such property, not intending to pay for it, or to execute his note as agreed, one who buys the property from him in the usual course of trade, without notice, and before any steps are taken by the original owner to reclaim it, acquires a perfect title.
    From the circuit court of Washington county.
    Hon. B. W. Williamson, Judge.
    Appellee is a wholesale dealer in carriages and other vehicles, and in 1891, through its agent, sold and shipped to J. C. Head & Co., retail dealers in Greenville, Miss., a delivery-wagon and roekaway, the title to which is involved in this action. The sale and shipment were made pursuant to a written contract, signed by J. C. Head & Co., which, after, •describing the two vehicles, contains the following stipulation: “The subscribers agree to settle promptly, by note or bill of exchange on Cincinnati or New York, on receipt of bill of lading, in accordance with the following terms: 50 and 10 off 4 mos., and 5 per cent, more off for cash in 10 days from date of shipment.” The vehicles were received in due course, but the purchasers failed to pay the cash in ten days, or to execute notes or give their acceptances for the price as agreed, and they have never complied with this part of the contract, though frequently requested to do so by appellee. The wagon was sold by Head & Co., in the usual, course of business, to Ban Head, and the rockaway to the First National Bank of Greenville, both purchases being for value without notice. Subsequently, appellee made demand on the bank'for the vehicles, and the bank, while admitting-possession, refused to deliver them. Whereupon, appelleebrought this action of replevin. Dan Head interposed a claim for the wagon, and the whole case was, by agreement, submitted to the court without a jury, and judgment was rendered for the plaintiff on both issues. The bank and Dan-Head have appealed.
    
      Jayne § Watson, for appellants.
    1. It is not denied that appellants were innocent purchasers for value of the vehicles. The contract did not create a conditional sale. The only condition named was that the subscriber agreed to settle promptly by note or draft, or to pay cash within ten days. The purchasers had the option of paying the money or giving the note. The vendor nowhere retained title.
    2. Appellee was a wholesale manufacturer of carriages, and .knew that its vendee, J. C. Head & Co., were retail dealers in them, and that these vehicles were purchased for sales Appellants were innocent purchasers. As between wholesale and retail dealers,, secret liens or reservations of title in conditional sales will not be permitted, as they operate as a fraud on the purchasing public. 109 Ind., 31; 6 Daly, 305 ;, 31 Barb., 650; 4 N. Y., 518; Benjamin on Sales, §319; 58-Ala., 165.
    
      Phelps Larkin, for appellee.
    The condition upon which title was to vest in the purchasers was never performed, and appellee had the right to reclaim its goods. The fact that notes were exacted of the purchasers upon delivery, as the condition of the sale, does not render it less a conditional sale. Appellee had the right to stipulate for promissory notes as a prerequisite to the sale. These might be of great importance to appellee in its business.
    The authorities holding such sale to be conditional, and that the seller has a right, upon non-performance of the’conditiou, to retake possession, are found in 1 Benjamin on Sales, §§ 335-348. See 60 Me., 48; 100 Mass., 515. Since J. C. Head & Co. had not acquired any title, they could transfer none to appellants. 1 Benjamin on Sales, § 362; Ketchum' v. Brennan, 53 Miss., 596; Duke v. Shackleford, 56 lb., 552. Under the facts, it cannot be contended that appellee is -chargeable with any purpose to assist in the .promotion- of a fraud. It never waived the condition in the sale, and cannot be deprived of the legitimate stipulation it made for its protection.
   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.  