delivered the opinion of the Court:
All the questions of fact involved in the case, including the question whether or not there was actual fraud on the part of the Chickerings and Cross, in entering into the agreement in question, were properly submitted to the jury under the instructions which were given, and are settled, so far as we are concerned, by the judgment of the Appellate Court.
The main question, which arises upon exceptions to the giving and refusal of instructions in the case, relates to the proper construction to be given to the agreement between Chickering ■& Sons and Pelton, Pomeroy & Cross. Upon this subject we concur in the following views, expressed by the late Justice McAllister, in delivering the opinion of the Appellate Court:
“But the question as to what was the real object or purpose of the parties to that agreement,—whether it was designed to cover a sale of the pianos from the Chickerings to Pelton, Pomeroy & Cross, and under the label or device of a consignment for sale to preserve in the vendors a lien upon the goods, or whether it constituted a contract of bailment,—were questions to be determined by the court upon a construction of the instrument, fairly considering all its provisions, with the view of finding therefrom what was the real intention of the parties. Those, undoubtedly, are pure questions of law. Murch v. Wright, 46 Ill. 487; Hervey v. Rhode Island L. Works, 93 U. S. 664; Heryford v. Davis, 102 id. 235 ; Fish v. Benedict, 74 N. Y. 613.
“As pertinent to those questions, we may briefly state that the contract provides: 1. That the prices at which Pelton, Pomeroy & Cross were to take the pianos of the Chickerings were to be agreed upon and expressed in the invoices. 2. Pel-ton & Co. were to pay out of their own pockets all freight charges and costs of shipment, to keep them insured for the benefit of the Chickerings, the former paying the premiums. 5. Pelton & Co. were at liberty to sell the pianos at such prices as they chose to fix upon them, and to have all they could get over and above the invoice prices, in full for all charges, commissions, expenses, etc. When they sold one or more they were to remit the invoice price to the Chickerings, and that should be in payment and discharge for the pianos so sold. 4. Advances might be made by Pelton & Co. by negotiable paper, and when such paper was paid it should transfer the title to the particular pianos for which such paper was given. 5. All pianos delivered by the Chickerings to Pelton & Co. were subject to the order of the former, and their right to transfer, remove, sell or re-possess themselves of the same, at any time, without notice.
“The last clause we regard as in the nature of the insecurity clause usually inserted in chattel mortgages. Is this a contract of bailment ? It is well settled in this State, that when the identical thing delivered is to be restored in the same or an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, or the money value, he becomes a debtor to make a return, and the title to the property is changed—it is a sale. (Lonergan v. Stewart, 55 Ill. 49, and authorities there cited; Richardson v. Olmstead, 74 id. 213.) Sir William Jones, in his work on Bailments, (2d ed.) 102, says: ‘It may also be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in value. In the first case it is regular bailment; in the second it becomes a debt.’
“It is indisputable, that, under the contract in question, Pel-ton & Go. were vested with the power and right of discharging themselves from any further obligations, as respected all the pianos mentioned in any one invoice, by paying to the Chick-erings the negotiable promissory note given therefor, but which, for the purpose of disguising the real nature of the contract, is therein called an ‘advance.’ In our opinion, it was not a contract of bailment, and the provisions authorizing Pelton & Co. to determine solely for themselves at what prices they would sell the pianos from their store, is almost conclusive that in reality they were not acting as the agents or factors of the Chiekerings; but that, with the further provision that they were to bear as their proper burden all the expenses of shipment, etc., the same, precisely, as purchasers, would leave no doubt that the contract was not one of bailment, or of principal and factor.
“The form of the agreement was that of consignment for sale, but its real purpose was to cover up a sale and preserve a lien in the Chiekerings for the price of the pianos. The invoices used are in perfect harmony with this view. They contained conditions which were to be considered as agreed to, and one of them was: ‘The agents of this firm (Chickering & Sons) are its customers who are engaged in selling its pianos in the territory allotted to them. Such customers are not agents in any sense known to the law,’ etc. Then follows: ‘It is agreed that the pianos specified in this bill are bought and sold upon the conditions herein set forth.’ It is true that the word ‘consigned’ was written across the bill, but there is no magic in that word which can take from the transaction its real character.
“In Thompson v. Pratt, 94 Pa. St. 275, the court says: ‘Whatever the form of the agreement, if its purpose was to cover up a sale and preserve a lien in the vendors for the price of the goods, it was void as respects creditors, whether the credit was given before or after the delivery of the goods. A consignment for such objects is no better than any other device.’ The same view was taken in Murch v. Wright, supra, where the device was a pretended lease. So, also, in Hervey v. Rhode Island Locomotive Works, supra. The cases cited are authority for the doctrine, that where one party, by means of contract, but without notice to the world, suffers the real ownership of chattels to be in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter, because, to injure third persons by giving a false credit to such ostensible owners, is the natural and probable result of the transaction. Rose v. Story, 1 Barr, 190; Martin v. Mathiot, 14 Serg. & R. 214; Stadtfeld v. Huntsman, 92 Pa. St. 53; Brunswick v. Hoover, 10 Weekly Notes of Cases, 219.
“We are of opinion that the agreement in question was void, as respects Bastress, the execution creditor, and the sheriff, for the reasons just stated.”
The views thus expressed are not inconsistent with those presented in the case of Gray v. Agnew, 95 Ill. 315, referred to by counsel for appellants. In the latter case, the opinion of the Court proceeded upon the assumption that there was a consignment of goods, and that the fact of such consignment was not denied by either party. Here, however, the question is whether a contract in writing can be properly construed to be a contract for the consignment of goods, or a contract for the sale of goods.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.