Opinion
Gen. No. 33,475.
Opinion filed July 3, 1929. Rehearing denied July 15, 1929.
1. SALES — insufficiency of evidence to impeach bona fides. The bona fides of the sale of an aeroplane is not impeached by proof that the purchaser was the seller's aunt and could not operate the plane and that the seller advertised the plane for sale in a standing advertisement which appeared after the sale had been made.
2. SALES — when retention of possession by seller not fraudulent. The rule that where possession of personal property is permitted to remain in the seller after an absolute sale the sale is fraudulent per se and void as to creditors and purchasers is subject to the qualification that delivery may be made as soon as it reasonably can, regard being had to the character and situation of the goods and the circumstances of the case.
3. SALES — sale of aeroplane by description. Where one having no aeroplane on hand, purports to make a sale and takes full payment therefor, the transaction operates as a contract to sell future goods, goods to be manufactured or acquired by the seller after making the contract to sell, under section 5 of the Uniform Sales Act, Cahill's St. ch. 121a, ¶ 8.
4. SALES — when title to goods nonexistent at time of contract passes to buyer. Where one purports to make a sale of an aeroplane which he does not possess, taking full payment therefor, and then goes to a manufacturer and buys an aeroplane, title to the aeroplane passes to the buyer when the seller takes possession upon receiving title from the manufacturer, where that was the clear intention of the parties, under section 19, rule 4 (1) of the Uniform Sales Act, Cahill's St. ch. 121a, ¶ 22, providing that where there is a contract to sell nonexistent goods by description, and goods of that description are unconditionally appropriated to the contract by either party with the assent of the other, title passes to the buyer.
5. SALES — when property appropriated to buyer's contract cannot be attached. An aeroplane, sold by description, cannot be attached by a creditor of the seller while being transported by him to the buyer, where the aeroplane has been unconditionally appropriated to the contract and title, thereupon, had passed to the buyer, under section 19, rule 4 (1), of the Uniform Sales Act, Cahill's St. ch. 121a, ¶ 22, in the absence of evidence tending to impeach the bona fides of the sale.
Appeal from the County Court of Cook county; the Hon. S.N. FINN, Judge, presiding.
ROTHBART LEWIS and ROBERT F. KOLB, for appellant.
ESSINGTON McKIBBIN and JAMES J. BARBOUR, for appellee; HAMILTON K. BEEBE and CREIGHTON S. MILLER, of counsel.
This is an appeal from a finding and judgment awarding the right of property in plaintiff to a certain Swallow aeroplane which was attached in a suit by appellant against one Paul Snick.
Paul Snick was the Indiana distributor for the Swallow Aeroplane Company of Wichita, Kansas, where it had a factory. He had a contract with that company to purchase aeroplanes on certain terms and to resell them to whomsoever he liked in the State of Indiana. Both he and plaintiff lived in Plymouth, Indiana. She was his aunt. October 17, 1928, Snick made a deposit with said company of $500 on an aeroplane. He got no title papers to the same until November 5 following when he paid the balance of the purchase price. After making the deposit of October 18, he had a standing advertisement in a New York magazine called "Aviation" for the sale of a Swallow aeroplane. The last insertion was in the issue of November 3, 1928. November 2 he executed a bill of sale for said aeroplane to plaintiff, his aunt, in consideration of $2,200, for which she gave her check, and the same was cashed at a bank in Plymouth on the same day. When asked what she did to take possession of the machine, she answered: "I instructed Paul to go and get it." Snick testified that he left Plymouth November 4 and arrived in Wichita on the morning of the 5th to get the aeroplane; that on November 5 he received from the company a bill of sale for the aeroplane on which he was credited with the purchase price, including his previous deposit of $500. The following morning he got into the aeroplane and started towards Plymouth, landing in Chicago about dusk November 6. The weather conditions were too bad for flight on the following day and when he went to the field to resume flight on the 8th he was served with the attachment writ.
No proof was introduced by defendant other than the bill or memorandum of the sale from the Swallow Company to Snick on November 5, 1928, and a stipulation as to the identity of the aeroplane, the deposit thereon October 18, 1928, the custody of the aeroplane with said company in the interval to November 5, 1928, and that Snick did not have actual possession, custody or control of the aeroplane until November 5.
While defendant sought to cast suspicion upon the bona fides of the sale from Snick to plaintiff by reason of their relationship and the fact that she could not drive an aeroplane, and that he had advertised the same in an issue of said magazine November 3 (which, however, was a continuing advertisement and evidently arranged for before November 2 in order to reach New York for that insertion), yet these circumstances amounted to mere suspicion and not substantive evidence sufficient in our judgment to impeach the sale.
But it is contended that even though the sale to plaintiff did take place it was fraudulent and void as to creditors of Snick because possession of the aeroplane was left with Snick, and numerous cases are cited laying down the unquestioned doctrine in this State that "an absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent per se, and void as to creditors and purchasers," as was said in Thornton v. Davenport, 2 Ill. (1 Scam.) 296, 299. "The rule is founded in public policy, and is designed to prevent secret and collusive transfers of property, and the procurement of credit upon an apparent ownership, different from that which really exists." Bass v. Pease, 79 Ill. App. 314. But the doctrine is qualified somewhat by the general rule "that the delivery shall take place as soon as it reasonably may, regard being had, not to the convenience of the parties, but to the character of the goods, the situation of the property and the circumstances of the case." (2 Mechem on Sales [1901], sec. 963; 2 Moore on Fraudulent Conveyances [1908], p. 551.) That qualification of the rule has been recognized in this State with regard to the neglect of a mortgagee in a chattel mortgage to reduce the property to possession on default of the mortgagor, "or within a reasonable time thereafter" to be determined by the circumstances of the parties. ( Shannon v. Wolf, 173 Ill. 253, 258; Reed v. Eames, 19 Ill. 594; Jacobson v. Patterson, 190 Ill. App. 266; Burk v. Faber, 188 Ill. App. 421.)
But we think the circumstances of the case bring it under the provisions of the Uniform Sales Act as to the passing of title to a contract of sale of "future goods." Section 5 of that Act, Cahill's St. ch. 121a, ¶ 8, reads:
"(1) The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of a contract to sell, in this Act called 'future goods.'
"(3) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods."
The rule for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer as provided in section 19, rule 4 (1), Cahill's St. ch. 121a, ¶ 22, is that: "Where there is a contract to sell . . . future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract" by either party thereto with the assent of the other, the property in the case thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.
It is clear that on November 2 when the bill of sale of the aeroplane in question by description was made by Snick to plaintiff the title thereto still remained in the Swallow Aeroplane Company, and that the title passed out of the company as soon as the machine was paid for by Snick and delivered to him. While, therefore, the parties to the bill of sale purported to effect a present sale it was of "future goods" as defined by said act and therefore the agreement operated as a contract to sell goods "acquired by the seller after the making of the contract to sell."
Discussing said provision of the act in 1 Williston on Sales (1924), sec. 137, it is said: "The attempted sale implies an obligation on the part of the seller to transfer title to the buyer thereafter. That is, though the parties purported to make a sale, if their intention cannot be effectuated fully, they are held at least to have made a contract." This was the construction put upon a present sale of beans which were to be grown in the future where the contract stated that it was understood by both parties the title was to pass at once and constitute an absolute sale. ( Hogue-Kellogg Co. v. Baker, 47 Cal.App. 247, 190 P. 493.) The goods, too, were "sold by description," were "in a deliverable state" and were "unconditionally appropriated" to the contract by the seller with at least the implied assent of the buyer, who gave him the money for the same and sent him to Wichita to get her aeroplane. When he took possession thereof it was unconditionally appropriated to the contract and in accordance with the clear intention of the parties the title thereto passed to plaintiff as the buyer. From that time on Snick was legally her agent to deliver the property.
While in coming to Chicago Snick did not take as direct a route as possible to Plymouth, Indiana, the explanation of his following an air route by "markings" along railroad lines to Chicago is a plausible one, and we find nothing in the circumstances of the route taken or the delay that ensued from weather conditions that has a legitimate tendency to impeach the bona fides of the transaction and the intention that the title of plaintiff to the aeroplane should pass when Snick obtained possession thereof.
The judgment is affirmed.
Affirmed.
SCANLAN and GRIDLET, JJ., concur.