Dissenting.
This case turns upon the question of whether or not E. M. Seward, who had a contract with the plaintiff, the W. T. Rawleigh Company, which the defendants guaranteed in writing, purchased the first lot of goods received by him, which are involved in the action, from plaintiff or from J. S. Barnett. It appears that Barnett dealt with and sold the goods of plaintiff under a contract like the one between plaintiff and Seward. This contract provided, among other things, as follows:
“The seller agrees to purchase from said buyer at any time during the term of or promptly after the termination or expiration of this contract, and at the wholesale prices then current, -all goods, wares *483and merchandise (wagon excepted) as the buyer may then have on hand and unsold: Provided, that these products are in as good and- salable condition when received by the seller as when purchased by him from the seller, and pay or credit the buyer therefor on the return of such products promptly by prepaid freight to Freeport, Illinois, or at sxich other branch, transfer house, or other regular place of shipment as may be designated by the seller in writing; and provided, further, that said buyer shall pay to the seller its actual expense of receiving, inspecting, and overhauling all such goods, wares and merchandise. ’ ’'
By deposition J. R. Jackson, the secretary of the plaintiff company, testified as to the purchase of the goods thus:
“26 — You may state whether or not E. M. Seward, after the making of the contract, Exhibit ‘A,’ purchased any goods from the plaintiff, under said contract, and, if so, how were such purchases made.” To which the witness made the following answer: “Yes, after his contract was accepted, Mr. Seward purchased goods from us under this contract. The first goods he purchased from us were goods which we had repurchased from a man who was in business in that community, and .under the contract we had with him we repurchased his goods here at Freeport, and then sold them to Mr. Seward under a bill of sale that we had; the deal all being consummated here at Freeport. Then we sold- him some other goods on his written order, which were sold him f. o. b. ears, Oakland, California.”
An invoice of the goods which are the subject of dispute was made out by J. S. Barnett, E. M. Seward, and F. G-. Larson, the representative of the plaintiff, of Oakland, California, on a transfer order blank of plaintiff’s, which states the following:
*484“Transferred from J. S. Barnett, retailer transferring products, to E. M. Seward, retailer receiving products:
“August 4, 1917.
“The "W. T. Rawleigh Company.
“Gentlemen: Subject to your approval, I have this date transferred to Mr. E. M. Seward, address Divide, Ore., * * my stock of Rawleigh Products, * * which are to be credited to my account at current wholesale prices as per contract.”
After some other particulars follows the signature of J. S. Barnett and then a list of the goods at the bottom of which it is stated that, subject to the approval of the company, E. M. Seward accepted from Barnett the products listed. Mr. Seward testified in regard to the supplies, contained in the list as follows:
“Q. Did you receive from the plaintiff the goods referred to in Exhibit ‘B’?
“A. Tes, I received them from_ Barnett, through their agent, it was their assistant, the manager from Oakland was there at the time.”
He further stated:
“He [Barnett] had the goods in his possession, and they were transferred, just as I transferred all the goods I had left to Mr. Luebke.”
He testified in effect that he got the list of the goods and the possession of the goods from Barnett; that he did not pay Barnett for them, but only paid him the money that he had paid out for freight; that he did not promise or agree to pay Barnett the purchase price. of the goods; that no value of the supplies was fixed between Seward and Barnett at the time of the transfer; that the price was fixed by the company; and that he was sent a list of the goods, with the price attached and was charged with *485the amount, and Barnett was credited with it, $320.94. This appears to have been done at Free-port, Illinois, on August 16, 1917, when the transfer was completed.
I find no semblance of testimony showing that Barnett sold any of these goods to Seward, or pretended to make such sale. ' The written evidence shows, directly to the contrary, that the goods were repurchased by the plaintiff from Barnett and sold to Seward, the payment for which was guaranteed in writing by the defendants. It was a three-cornered transaction, but was in writing, and was plain and fair. Seward appears to have made no contract whatever with Barnett in regard to the goods:
We find in 23 R. C. L. 1186, Section 2:
“Blackstone defines a sale to be ‘a transmutation of property from one man to another in consideration of some price or recompense in value,’ and the term has been defined by courts as a transfer of the property in a chattel for a consideration. To constitute a sale in its broader sense the price need not necessarily be money, but if the property is sold for a fixed money price, whether it be paid in cash or in goods, it is a sale. In its more strict sense a sale may be defined as ‘transfer of the absolute or general property in a thing for a price in money,’ which the buyer pays or promises to pay for the thing bought and sold, and it has been said that it means at all times a contract to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold.”
To the same'effect see 35 Cyc. 25.
The trial court erred in directing a verdict for the defendants in the face of practically uncontradicted testimony. I am therefore unable to concur in the opinion of Mr. Justice Johns.