Kaplan v. Collier

Bussell, C. J.,

concurring specially. I agree that the judgment of the lower court in directing a verdict should be reversed, but I do not concur in all that is said in the opinion of the majority of the court. It appears to me that the bona fides of the gift from *626Collier to his wife is unquestioned. It is likewise undisputed that the unconditional bill of sale was not recorded within the thirty days prescribed by law. The case in my opinion fs not altogether dissimilar to that of Reisman v. Wester (supra), in which this court held that a piano which had been sold upon the installment plan and the title to which had been reserved by "Wester was subject to the lien of a judgment obtained against Mrs. Taylor, whose only title had been acquired by gift from her husband, the purchaser under an unrecorded reservation of title. It is true that the decision in that- case is based partly upon the fact that Wester, by failing to record his reservation of title, placed it in the power of Mrs. Taylor to obtain credit from Eeisman, but the principle that a wife may by gift acquire title from her husband, and that the original vendor may part with his title (making the sale in effect merely a sale upon account) by failing to'record his reservation of title within time, was clearly recognized. As said by the Supreme Court in the case of Southern Iron &c. Co. v. Voyles, 138 Ga. 258, 262 (75 S. E. 248, 41 L. E. A. (N. S.) 375, 29 Ann. Cas. (1913D) 369), “when one undertakes to circumvent the rights of others by the assertion of a superior right accruing solely from a compliance with a statute, he must show full and complete compliance with the statute.” The vendor in the present case was apprized by the nature of the articles purchased that they were probably intended for a gift, and this affords an additional reason why the vendors should have been prompt in having the contract of conditional sale put to record if they intended to reserve title. One who sells diamond earrings to a man who is not engaged in the sale of jewelry must naturally infer that they are purchased with the idea of giving them to some one. That this fact is judicially of some significance is recognized in Ee Priegle Paint Co., 175 Fed. 586, 587, and in Re Gareewich, 115 Fed. 87-89 (53 C. C. A. 510). In my opinion the plaintiffs were charged with notice that the earrings were purchased by Collier to be given to his wife or some other woman; and this was wholly inconsistent with the reservation of title in the vendors unless they promptly complied with the strict letter of the law with reference to the recording of the reservation of title.