The defendant was a purchaser of the wagons in question for value and without notice of the plaintiff’s claim or title to same. Howie may have, and, of course, did have, notice of the plaintiff’s title, and .subsequently became connected with the defendant corporation; but at the time of the sale he was representing himself as the successor to or owner of the Shelnut Mercantile Company, and notice to him cannot be imputed to the defendant corporation. — Frenkel v. Hudson, 82 Ala. 158, 2 South. 758, 60 Am. Rep. 736. If, therefore, the instrument under which the purchase was made is á mortgage, the failure to record same would give the defendant protection under the statute of registration. And Sfection 3394 of the Code of 1907 applies the same results, for a failure to register, to conditional sales as does the statute as to the registration of mortgages; but said section 3394 does not apply to the instrument in question, if a conditional sale, as Calhoun county was excepted from the influence of said section 3394 when the sale was made. — Acts 1900-1, p. 1516.
The said instrument is unlike the one construed in the case of Dowdell v. Empire Co., 84 Ala. 316, 4 South. 31. And we may concede that it is a conditional sale, and not a mortgage, for the purpose of deciding this case, as the result will be the same as applied to the facts contained in the record. It is well settled, in this and other states, that, where the vendor retains* title to the thing sold until the price is paid, the title does *159not pass; the transaction being a mere conditional sale, “and that a bona fide purchaser of such property acquires only the conditional title of his vendor, and cannot be protected against recovery on suit brought by the original vendor and owner of the legal title. The fact that the first purchaser, or second vendor, was at the time of sale in possession of the property, does not change the principle. It is a question of right, not notice, and the maxim ‘caveat emptor’ applies with as much force as in cases of ordinary bailments. The principle, of course, does not obtain where the condition has been expressly or impliedly waived by the vendor, or he has done or suffered anything by reason of which the purchaser from the vendee has been misled.” — Sumner v. Woods, 67 Ala. 139, 42 Am. Rep. 104. “Where the owner, by his act or consent, has given another such evidence of .the right to sell or otherwise dispose of his goods as, according to the customs or the common understanding of the world, usually accompanied the authority of sale or disposition, as where a manufacturer delivers property, retaining title, to a retail dealer for the purpose of sale by the latter, a sale by the person thus intrusted' with the possession of the goods, and with the indicia of ownership, or of authority to sell or otherwise dispose of them, in violation of his duty to the owner, to an innocent purchaser for value, will prevail against the reserved title of the owner.” — Bent v. Jerkins, 112 Ala. 485, 20 South. 655; Leigh v. M. & O. R. R., 58 Ala. 165; Lawrence v. Owens, 39 Mo. App. 325; W. W. W. & M. Co. v. Carman, 109 Ind. 31, N. E. 707, 58 Am. Rep. 382; 6 Am. & Eng. Encyc. of Law, 483, and cases cited in note 1.
A few cases confine the protection to purchasers only from a retailer in the due or ordinary course of trade, and not to one who buys the whole stock in bulk or by *160wholesale from a retailer. — Burbank v. Crooker, 7 Gray (Mass.) 158, 66 Am. Dec. 470; Pratt v. Burhans, 84 Mich. 489, 47 N. W. 1064, 22 Am. St. Rep. 703. The weight of authority, however, and among which are our own cases of Bent v. Jerkins and M. & O. R. R. v. Leigh, supra,, do not confine the waiver or estoppel in favor of purchasers in retail or the ordinary course of trade alone, but extend it to all innocent purchasers for value. The3r hold that, notwithstanding goods be sold, with title reserved, to a retailer to dispose of only in the ordinary course of trade, an innocent purchaser from him will be protected, although he exceeded his authority in making the sale. If he sold only in the customary wajr, he would not exceed his authority, or breach his duty to the owner, and the expression that protection will be awarded an innocent purchaser, although the second vendor exceeds his authority, and breaches his duty to the owner in making the sale, was needless if the rule was confined to retail sales; for if a retailer sells only in the usual or customary manner, he would not exceed the authority given him as a retailer. The case of Lawrence v. Owens, 39 Mo. App. 325, cited approvingly in the case of Bent v. Jerkins, supra, involved a purchase in bulk.
The facts in the case at bar show that the wagons were sold to the Shelnut Mercantile Company, a retailer, with authority to sell or dispose of same in the ordinary course of business. If the said company breached a duty to the plaintiff in making the sale, the said plaintiff gave them the indicia of ownership and authority to sell, and is estopped from claiming under a reserved title as against this defendant, who was an innocent purchaser for value, and who was not charged with the Shelnut Company’s breach of duty to the plaintiff as to the manner of making the sale.
*161The trial court erred in rendering judgment for the plaintiff, and the judgment must be reversed; and, as the case was tried by the court without a jury, under the practice act for the circuit court of Calhoun county (Acts 1907, p. 397), a judgment will he here rendered for the defendant.
Beversed and rendered.
Dowdell, C. J., and Sáyrb and Evans, JJ., concur.