Mahler v. Schloss

Citations

• 7 Daly 291

Syllabus

<p>The plaintiff took a bill of sale of goods, paying the price named therein, and executing a written agreement to return them at an advance specified, if the former owners desired to repurchase within two months, and, in that event, to pay over the proceeds of those sold meantime, less tén per cent, commission, and the testimony of the parties to the transaction was conflicting as to whether it was an absolute sale or a transfer as security for the sum advanced:—Held, that on the face of the instruments, in the absence of evidence goiug to show fraud .on the part of the buyer, or undue inadequacy in the price paid, the transaction was in •effect an absolute sale with a right to repurchase, and valid as against creditors levying on the goods under execution against the vendor, and that on the conflict of testimony, the jury should determine the character of the transaction.</p> <p>The evidence as to the change of possession being in conflict,—HéM, that, assuming that the vendor remained in possession, as was found by the jury, the .plaintiff was entitled to goto the jury on the question of the bonafid.es of the transaction on his part.</p> <p>The weight of the evidence on the question of the change of possession, considered.</p> <p>An instruction to the jury by the judge at the trial, that “if it was a conditional sale, then it was void as against creditors,’’—Held, error.</p> <p>An instruction that if it was a mortgage, it was void for the reason that the creditors had the right to take the goods under the execution against the former owners, the goods being in the possession of the latter, and being to all intents and purposes theirs,—Held, erroneous, the questions of the character of the transaction, and of the plaintiff’s good faith, not being submitted to the jury.</p>