The majority misconstrues the contract as one of consignment. That being the erroneous basis upon which the opinion proceeds, it renders all of the citations relied upon by the majority utterly inapt.
While it is not always easy to define the distinction between sales and consignments, upon this contract and the manifest intent of the parties, as found by the trial court, there should be no difficulty whatever in defining it as a sale.
Although the word "handle" is used in the contract, put there by appellant's agent, its force is completely taken away by the other provisions of the contract. The contract, which was prepared by appellant, is to be construed most strongly against appellant, as the majority concede. It is also apparent that appellant was not as successful as anticipated by it in its speculative plan when the contract was entered into. It put the potatoes in cold storage and held them for a higher market which did not recur, although at one time it could have sold them for over thirty dollars per ton. This decision unjustly deprives respondent of the benefits of his bargain and is not right. *Page 587
No brokerage or commission was ever paid or agreed to be paid by respondent to appellant. By the contract and by the acts of all of the parties, all payments came from appellant to respondent. Title to the potatoes passed to appellant on delivery to its warehouse. Had a fire occurred the next week and the warehouse and potatoes been burned, this court, nor any other reputable court, would ever hold that the loss would fall upon respondent.
Whenever goods are delivered to another who agrees to pay a price therefor and has exclusive control over them with power to sell and fix the prices, with no agreement to return any that may not be sold and no obligation to report or account for sales made, there is a sale and not a consignment. The distinction between a contract of sale and a consignment is that, in the case of a sale, the title passes to the buyer, while in the case of a consignment to a factor, the possession passes to the factor, but the title remains in the consignor. Where goods are delivered by one party to another, to sell for the party delivering them, it creates the relation of agency, and the title remains in the principal. If, however, it appears from the whole agreement that it is the intention of the parties that the title to the goods is to pass to the party receiving them, for a price to be paid by him, then the transaction is a sale. 11 R.C.L. 755. That is the consensus of almost universal authority. To the same effect is 6 C.J. 1091-92.
It is inconceivable to me how it can be considered that the contract before us is a consignment. That is contrary to our own cases as well as the great weight of authority.
Respondent also contradicted the testimony of appellant's bookkeeper that a receipt issued by it on one *Page 588 of its printed forms was accepted as full settlement, as stated by the majority.
The trial judge believed the testimony of respondent, and there is no reason why we should disturb it. On the contrary, there is every reason why it should be approved.
The judgment should be affirmed.
MILLARD, C.J., concurs with HOLCOMB, J.