held to exist in the dealer is an appar ent authority. The conditional sale of property to a dealer engaged in selling the particular kind of property which is the subject of the sale is held to raise an apparent authority in the retailer to make a resale. At least, knowledge by the conditional seller that the dealer is purchasing the property for resale, and the delivery of possession to him, vest the dealer with such indicia of title as estop the seller from claiming the property from a bona fide purchaser thereof for value without notice of the seller's claim. Bass, Heard & Howle v. International Harvester Co. (1910) 169 Ala. 154, 33 L.R.A. (N.S.) 374, 53 So. 1014; Glass v. Continental Guaranty Corp. (1921) 81 Fla. 687, 25 A.L.R. 312, 88 So. 876, infra; Citizens' Sav. & Invest. Co. v. Hunt's Garage (1922) 128 Miss. 535, 91 So. 133. A similar principle has been applied where goods are consigned by a manufacturer to a retailer who agrees to sell the same on account of the manufacturer, and who agrees, also, that the goods shall remain the property of the manufacturer until paid for; one who purchases the property from the retailer in good faith and for value, without notice of the agreement between retailer and manufacturer, and without notice of the fact that the retailer obtained the property from the particular manufacturer in question, obtains good title. Bent v. Jerkins (1895) 112 Ala. 485, 20 So. 655; Edwards v. Baldwin Piano Co. (1920) 79 Fla. 143, 83 So. 915. Such a purchaser is not bound by agreements in the contract between manufacturer and retailer; as, for example, that title shall remain in the conditional seller or consignor until he has received payment. Bent v. Jerkins (Ala.) supra. An unconditional license to sell given by the conditional seller to the buyer is held to amount to a waiver of the security in Rogers v. Whitney (1917) 91 Vt. 79, 99 Atl. 419. Such a waiver of the security is held to result from the taking of conditional sale notes reserving title to horses, upon a sale thereof to a dealer in horses, and with the knowledge that the dealer bought the horses for resale in his business. The silence of the conditional seller is held to amount to an implied license to sell them in the regular course of trade. The court quotes a statement found in Armington v. Houston (1866) 38 Vt. 448, 91 Am. Dec. 366, to the effect that "where property is sold upon a condition that the title is not to pass until payment, but upon the understanding that it is to be sold by the buyer in the ordinary course of his business, the seller would be estopped from asserting any right to it adverse. to the right of one who should purchase it in good faith and without notice of the condition," and says that the court in the case at bar need not be concerned with any question as to the accuracy of the term "estoppel" as frequently used in this connection; that the license when acted upon is final, and a waiver results as a legal consequence. The principle of the foregoing cases was applied in Glass v. Continental Guaranty Corp. (1921) 81 Fla. 687, 25 A.L.R. 312, 88 So. 876, supra, in a case in which a dealer of automobiles to whom a shipment had been consigned gave to one who furnished the money to pay the draft attached to the bill of lading a trust receipt therefor, which acknowledged ownership to be in the one furnishing the money but where the one furnishing the money allowed a car to go into the possession of a dealer who was advertised and known to be a dealer in the make of cars in question. Under these circumstances, according to the court, the party who advanced the money, and took a secret trust receipt for the bill of lading, and delivered the bill of lading to the dealer, without taking any steps to inform purchasers from the dealer that the latter had no right to sell, when the party taking the trust receipt knew of the dealer's selling business, and the circumstances clearly indicated that the dealer had a right to sell, the party taking the trust receipt is estopped from claiming title as against a bona fide purchaser from the dealer, without actual or constructive notice of the trust receipt, or of the conditions on which the bill of lading was delivered to the consignee dealer. In Jones v. Commercial Invest. Trust (1924) 64 Utah, 151, 228 Pac. 896, a case involving a transaction between a finance company and an automobile dealer which was held not to be a conditional sale and, therefore, not within the scope of this annotation, the court very clearly states the principles of estoppel arising from intrusting a dealer with articles, as follows: "I am of the opinion that when the appellant placed its automobile into the possession of the Naylor-Woodruff Motor Company for the purpose of sale, knowing that the latter was a retail dealer in such cars, and that it would hold out and advertise itself as the owner thereof and as having the right to sell the same, and permitted the dealer to exhibit the car for sale in its salesroom, under the circumstances shown in this case, it thereby clothed the dealer with such apparent ownership and authority to sell that it ought to be, and is, estopped to deny as against Jones, who purchased the car from the dealer in good faith, for full value, in the regular course of the seller's business and at retail, and without any knowledge or notice of the appellant's claim thereto, that the dealer had the right to make the sale and to assert its superior title to the car." The appearance of authority to resell would seem to be strengthened by provisions in the contract that the conditional seller was to have title to the goods, and to the "proceeds" thereof. No consideration is given to such a provision, which existed, in Bass, Heard & Howle v. International Harvester Co. (1910) 169 Ala. 154, 33 L.R.A. (N.S.) 374, 53 So. 1014. When an estoppel arises is obviously a question to be decided upon the facts of the individual case. An estoppel was held to exist in Mississippi River Logging Co. v. Miller (1901) 109 Wis. 77, 85 N. W. 193, where the owner of timber negotiated a sale thereof to a sawmill company, and was informed at the time that the milling company wanted to cut the timber right away and get it out with oth er timber which it had in the vicinity and, with this knowledge, gave imme diate possession to the milling company and allowed that possession to be ac companied with all the indicia of titl and apparent right to sell, without tak ing any measures to preserve any where any indication that the title t the logs remained in him, although h knew that they were to be mixed indis criminately with the other logs of the milling company. In such a situation. where the lumber has been sold in the ordinary course of business to a pur chaser without notice of the condi tional seller's claim, to one who has paid the full purchase price be fore receiving any notice thereof, the conditional seller is estopped from as serting its claim. It is stated: "The simple principle is that if the condi tional vendor, having given the vender possession and apparent authority to sell the property, either expressly or impliedly, consent to such sale by his vendee, he will be estopped from asserting his rights to the injury of a purchaser who bought in the ordinary course of business and paid for the property without notice." The decision in Mississippi River Logging Co. v. Miller is followed in Stubbings v. Curtis (1901) 109 Wis. 307, 85 N. W. 325, on facts that are stated to be almost identical with the facts existing in the Mississippi River Logging Co. Case except that in the Stubbings Case it appeared more clearly that the conditional seller contemplated that his buyer was to manufacture the logs and sell the lumber therefrom, than it did in the Mississippi River Logging Co. Case. It is not uniformly held that every conditional sale to a dealer known to be such, under which he is invested with the possession of the property, is such indicia of ownership and apparent authority to sell as to give a purchaser from the dealer, even bona fide and for value, priority over the conditional seller. Where such conditional seller to a dealer has complied with the statute as to filing or recording, a purchaser from the dealer does not obtain good title as against the conditional seller. Finance & G. Co. v. De Motor Truck Co. (1924) 145 Md. 125 Atl. 585. Thus, it has been that a manufacturer of automotrucks who has sold one such to a dealer under an agreement title to the property shall remain the manufacturer until it is fully for, who has recorded his condoes not lose title to the truck ror of one who purchased from dealer in good faith and for value, without actual notice of the conal-sale agreement. Ibid. It is view of the Maryland court that, ere the contract is recorded, a purer from the dealer is charged with active notice thereof. Being ged with constructive notice, he netice that, notwithstanding the r's possession of the property, he at the unconditional owner thereand this being true it is not apparhow the conditional seller can be pped from asserting a title of hhe had given public notice in Very manner provided by the law. swer to the argument that it t be inferred from the sale to a er that the seller knew that the er intended to sell the truck, the says: "It does not follow that it have known that he intended to t before he paid for it, or that he authorized to sell it before he paid In this case it appears that the conditional seller had been accustomed to selling automobiles to a dealer for purposes of resale under an agreement called a "wholesale contract form." The car in question was not sold under any such agreement, but under a form of resale agreement used for conditional sales to ordinary retail purchasers. The car was not kept as other cars were in the warehouse, but was used by the purchasers for the purposes of their business, but chiefly for the purpose of demonstrating the particular make of car to prospective purchasers. In this situation the right of the conditional seller was given priority, in answer to the argument that there would be a great deal of hardship to a purchaser of a motor car from a dealer in cars, if he is to be put upon inquiry, before purchasing, in order to be sure of his title. The court says: "But is the conditional vendor under such circumstances to be placed in any lower position than any other person who intrusts an article to one who happens to deal in the same class of goods? The hardship would be the same if the owner of a repair shop who also dealt in motor cars chose to sell a car left for repair. A jeweler with whom I leave my watch to be repaired can give no title to it to another, though he deals in watches. It is really the common question as to which of two innocent persons shall suffer for another's wrong. The owners of the car did all they could under the law to protect their ownership; and, unless some statutory provision comes to the relief of the plaintiff, the maxim 'caveat emptor' applies to his purchase from one who could give no title." er or other person for the purpose resale by him in the course of busithe reservation of title shall be alid as against a purchaser in the hary course of business, where the act is registered as required by Etatute, the question whether there delivery "for the purpose of reis a question of fact. It may be , even in case of a sale to a dealthat it was not a sale "for the purof resale." Dulmage v. Bankers Even where there is no filing or recording,-apparently not being required by statute,-a bona fide purchaser from a dealer is held not to be ancial Corp. (1921) 51 Ont. L. Rep. protected as against the conditional 667 D. L. R. 594, affirmed in [1923] Unt. L. R. 437, 1 D. L. R. 1185. It argued in this case that a delivery a trader for any purpose authorized to resell it to one who would be ected by virtue of this statute. 3 argument, however, was denied. 47 A.L.R.-7. seller of the property to the dealer, where no authority to sell is conferred, at least where a sale without the consent of the conditional seller is expressly forbidden. Sargent v. Metcalf (1855) 5 Gray (Mass.) 306, 66 Am. Dec. 368. The rule is stated in Fairbanks Co. v. Graves (1907) 90 Miss. 453, 43 So. 675, as follows: "There is nothing in the law which prohibits one merchant from selling an article of merchandise to another merchant, with reservation of title until the purchase money is paid, unless the article sold is meant to be resold, or is of such character as that it may be fairly inferred, when the sale is made, that the purpose of the purchase is to resell it. No absolute rule controlling this subject can be laid down by this court, but each case must depend upon its own facts." It was accordingly held that the evidence not warranting the conclusion that the conditional seller sold the property in question for purpose of resale, or that the character of the property sold was such as to bind it with notice of the use the purchaser intended to make of the property, or any facts warranting the conclusion that the conditional seller had actual or constructive notice of the intention of the vendee, the title would not pass. In accord with the principle announced in this case, it is held, where the owner of a motor truck placed in the hands of a buyer who was a dealer, under a contract reserving title to the seller until the payment of the notes given for the purchase price, and which expressly stipulated that the property should not be sold, let, assigned, encumbered, used for hire or for demonstration, or operated under its own power, or disposed of in any way, without the written consent of the owner, that the stipulation positively negatived any authority in the buyer to sell the truck or place it in his own stock, and, therefore, the seller could recover possession thereof as against one who purchased under a conditional-sale contract, upon resale by the buyer and subsequently purchased the car on execution against the subvendee, there being no proof that the seller consented to such resale, or that a "sign" statute was violated. United States Motor Truck Co. v. Southern Securities Co. (1923) 131 Miss. 664, 95 So. 639. A decision in favor of a subvendee was based upon the ground that the original conditional seller had not proven his reservation of title in Purtle v. Heney (1896) 33 N. B. 607. In the course of the opinion it is stated that where one manufacturer or dealer in carriages sells articles of his manufacture to another dealer, and delivers the articles to him, apparently in the ordinary course of business, "the onus is upon the vendor to show that he never parted with the title to the property, when he seeks to resume possession, and he should be held to strict proof when he is seeking to recover against an innocent purchaser for value." This statement recognizes that a valid reservation of title may be made in the sale to a dealer. In view of the decision, however, this recognition is obiter. In the consideration of this question, some weight must be given to the character of the goods sold with reference to the dealer's business. An exception to the general rule that a conditional seller of property to a dealer in the property which is the subject-matter of the sale loses title as against a purchaser in the ordinary course of trade was made in Jermyn v. Schweppenhauser (1901) 33 Misc. 603, 68 N. Y. Supp. 153, holding that the conditional seller of boilers to a dealer in such articles, who delivered them at buildings in course of erection, with the understanding that they were to be placed therein, without knowledge. that these were the buildings of a third party and that the dealer had obtained the boilers to furnish them to the owner, did not lose title as against the bona fide purchaser of the real estate from the owner thereof, to whom the boilers had been sold by the dealer. The court asked the question: "Must the plaintiff be held to have necessarily assumed from the fact that his vendees were engaged in the business of dealing in boilers, that these boilers were purchased by them to supply to others, and not for their own use?" The court then points out that there were no facts which raised any inference as to the improbability of supposing the dealers to be the principals interested in the building, or that they had some use for the boilers in the period before payment came due, other than a sale to another. The contract gave the conditional seller the right to enter any place where the articles might be found, and remove the same without hindrance, and further provided that all sums that might be paid on account of the purchase price should be deemed compensation for the use of the articles while in the possession of the vendee, contemplating a continued possession rather than a sale. In view of the above facts, the court in Jermyn v. Schweppenhauser (N. Y.) concluded that it did not feel justified, without any direct evidence of an understanding that the boilers were sold and delivered to the dealer for sale by him, that such was the intention. But a contrary conclusion was reached in a very similar situation in Albert v. R. Lewis Steiner Mfg. Co. (1904) 42 Misc. 522, 86 N. Y. Supp. 162. In this case the conditional seller of gas fixtures, which were ordered on a written order containing the address of the conditional buyer and also the address of the premises in which fixtures were to be installed, had other dealings of a similar character with the conditional buyer, and knew that the latter purchased goods from the former for the purpose of selling the same and supplying them to buildings. The owner of the building purchased the goods from the conditional buyer, without notice of any claim of the conditional seller, and, in good faith, paid for them before it had any such notice. To this situation the court applied the rule that, where the sale and delivery of personal property are made upon condition that title to the property is to remain in the seller until the purchase price is paid, and where the property is sold or delivered to the buyer for consumption or sale or to be dealt with in a manner inconsistent with the continued ownership of the seller, the seller is estopped from setting up title in himself as against a bona fide purchaser. The court in McCombs v. Guild (1882) 9 Lea (Tenn.) 81, recognizes that there may be some circumstances under which the conditional buyer will be invested with such indicia of title as would estop the conditional seller from claiming the property as against a bona fide purchaser in good faith, but it is held in that case that the fact that the conditional buyer of a piano offered it for sale in a sewingmachine store, where he had other pianos, and actually sold the one in question without the knowledge of the conditional seller, did not carry the title and deprive the conditional seller of his property. The court adds: “If the proof had shown that the purchaser was a regular dealer in pianos, that the plaintiffs knew the fact and sold him the piano as such dealer, there might be strong ground for holding the plaintiffs to the consequences of such a transaction. But in the absence of such proof, the facts are not sufficient to sustain an affirmative answer to the question." The contract of sale expressly provided that the conditional buyer should not remove the piano from a stipulated house, or sell, mortgage, or convey the same in any manner, without the conditional seller's written consent. See Fairbanks Co. v. Graves (1907) 90 Miss. 453, 43 So. 675, supra, as to character of property involved. And see Pacific Acceptance Corp. v. Bank of Italy (1922) 59 Cal. App. 76, 209 Pac. 1024, and Chucovich v. San Francisco Securities Corp. (1923) 60 Cal. App. 700, 214 Pac. 263, infra, III. 2. Sales out of usual course. (a) In general, As shown above, while some cases sustain the priority of a purchaser from a dealer over the conditional seller on the theory that, by selling and delivering the property to the dealer an implied or apparent authority to resell arises, this rule is not uniform. A further question arises where the resale by the dealer is out of the usual course of his sales. There is a difference of opinion as to the priority of purchasers, where the sale is thus out of the usual course of the dealer's sales. According to one line of authorities, the purchaser from the dealer is protected. II. e, 2, (b). Ac |