delivered the opinion of the court.
This is an appeal in the nature of a writ of error to review the decision of the District Court in an action for the recovery of the possession of a billiard-table or the value of it. The cause was tried by the judge without a jury; after all the evidence was in, the judge, on •defendant’s motion, granted a judgment of nonsuit. It appears from the record that one Simpson received possession of the table from plaintiff in error, under and by virtue of a certain written contract between them, consisting of two parts, — a lease so called, and an agreement for sale; and that while the table was in Simpson’s *193possession it was attached by some of his creditors, and afterwards was sold by- him in consideration, among other things, of payment of the attachment debt to one Bumstead, another creditor, who received it in possession, and-then sold it to the defendant in error, an innocent purchaser in good faith, for valuable consideration.
The whole case turns upon the single question of what must be held to be the* intention of the parties to the contract under which Simpson got possession. If they are to be considered as intending a contract of conditional sale, then it is conceded, and the record bears -out the concession, that the nonsuit was erroneous. There is much that might be said on both sides of the question. There is great room for divergency of view, as is evidenced by the great number of decisions to be found in the reports, many of them by courts divided within themselves, and opposed towards one another, in cases very closely resembling, if not substantially identical, with the one at bar. Our conclusion has not been reached without considerable hesitancy, and is not unanimous. A majority of us, however, are unable to distinguish the determinative features of this contract from those of that' in Harkness v. Russell, a case decided in November last by the Supreme Court of the United States, and reported in volume 7 of the Supreme Court Reporter, page 50. The contract in that case was held to be one of conditional sale, whereby the property in the thing to be sold was not to pass until the thing itself should be fully paid for.
We hold that the contract in this case was one for conditional sale. To call the agreement for payment of the purchase price a lease, and the installments of price as they fell due rent, was a very silly device to effect probably some end that could have been better effected in a straightforward way. It was intended, perhaps, to make appear indubitable what otherwise would have been more clear, — the will of the parties that the title *194of the vendor should not be divested until the purchase price should be fully paid.
The judgment of the lower court is reversed, and the cause is remanded, with directions to open the nonsuit and let the cause proceed.
Turner, J., concurred.