The opinion of the court was delivered,
by Thompson, C. J.It would undoubtedly have been error had the learned judge below given peremptory instructions to the jury to find in favor of the defendant, the contract on which the plaintiffs were claiming to recover, resting wholly in parol, had it not been that they, assuming the contract to be proved in accordance, with their theory, asked him to charge that the plaintiff was entitled to recover. He refused the prayer, and charged that on the undisputed facts in regard to the contract, the defendant was entitled to the verdict.
The fact that the learned judge interpreted the contract adversely to the plaintiff’s prayer after having been requested to interpret it by them, is not an error they can complain of now. It does not contravene the maxim, respondent facto juratores, for the prayer in the plaintiff’s 1st point was in effect a withdrawal of the contract from the jury and a submission of its meaning to the court.
Was there error in the interpretation of the transaction by the court ? He was of opinion that the contract was in every essential particular similar to the contract in Jenkins v. Eichelberger, 4 Watts 121, and to be ruled by the decision in that case.
Certainly, if there be any distinguishing differences between that and this case they are very slight, too slight it seems to me, to affect the identity of principles which should rule both.
In our case, the contract of the plaintiff was to furnish J. B. Cook with hides at their cash prices, and interest; he to receive and tan them at his own expense, and return the leather to them, who were to sell it, and after deducting the. charge for the hides, and interest, a commission of five per cent, for sales and guaranty, and all current expenses to credit the balance to his (Cook’s) account, *197a precedent indebtedness. He not to sell the leather to any other parties.
Pursuant to the agreement, hides were forwarded from time to time by the plaintiff.to the defendant, accompanied by regular invoices of weights and prices, as is customary in the sale of goods. The defendant tanned and made returns of leather, and the plaintiff’s account of sales show him credited with the net proceeds, deducting expenses, commissions for-sales and guaranty.
In all essential particulars this was a sale. A court could say nothing else of it than this, and had it gone to the jury on the undisputed facts as proved by the plaintiffs, would have been bound to have seen that they did not attribute to it a character that the terms did not indicate, and the law would not sustain.
"The hides were either the plaintiffs all the while, .notwithstanding dhey were charged to the defendant and delivered to him, or they were delivered on a sale on credit, and a contract for resale when tanned. The plan of the parties was sufficiently disclosed in the contract, as proved by the plaintiff’s witness, to have been to give to him the advantage and credit of an owner without the liability as owner, to have it seized by creditors. Had there been nothing of this kind in view, no one would have hesitated a moment in pronouncing the transaction a sale. The hides were charged, the debt or price to bear interest, and when leather was returned, it was to be sold by the plaintiffs, charging commissions for sales and guaranty and expenses, and- crediting the proceeds to the defendant’s account. It would be strange to hear of a man charging interest against his own goods, and more strange to charge commissions for sales and’ guaranties of sales of them. This the plaintiff’s account given in evidence shows was done by them.
In Jenkins v. Eichelberger, supra, the contract was of the same nature as the one in hand. The hides in that case were to be charged to Osborne at cost and interest at 5 per cent, commission. Interest to commence after six months. When tanned the leather was to be returned to the plaintiff and by him sold. After deducting from the net proceeds the charge for the hides, the balance was to be paid to Osborne.
The difference between these 'contracts is entirely unessential, certainly not sufficient to give the character of a bailment, loeatio opens faoiendi, to the one, and that of a sale to the other. The reasoning of Gibson, 0. J., in that case is exhaustive of the position that it was a sale, and in showing that it would be against public policy to hold the contrary, thereby establishing a rule which would impart a delusive credit to property, to the injury of the public who could not know its situation to be other than the property of the possessor. The law abhors secret liens however attempted to be established.
*198The learned judge below being called on to pronounce upon the character of the contract in question by the plaintiffs, the parties Setting it up could not go beyond the case of Jenkins v. Eichelberger. It was in point, and neither overruled nor shaken by any subsequent decision. We therefore approve of his ruling the point as he did.
We think there is no error in the rejection of the testimony proposed, and that the judgment must be affirmed.