}Brass-shop v. M. J. Hirshhorn, dur-jing the course of which complainant had seized 347 hats, alleged to be the property of defendant, ind which involves $3,314.31, also al-lieged to be due complainant, was settled in the U.S. Court on Saturday, when Judge Mf, D. Bardy gave Jjudgment in full for plaintiff. Mr. F. 3. Schuh! represented plaintiff jand Mr, C. S, Franklin appeared {for the defence.
Tt will be recalled that Messrs.
Rubin & Ca, of San Francisco intervened, and claimed that they Jowned the hats, which were attach-fed by Mr. Thuftston R, Porter, U.S. Marshal. Defendant earlier in the [year bought $5,000 worth of bras {from plaintiff? and his cheque was Jdishonoured: Later he paid part of ithe money, and plaintiff sued for the balance. In the judgment, which follows, his Honour ruled that the hats were-not the property of the intervener, but belonged to: de-fondant, and disallowed the counter claim for damages:—"Alexander Rubin & Ca., of San [Francisco has filed a complaint in {intervention in the above entitled jaetion: under and pursuant to sec. }462 of the: Code of the: District of \Cotumbia,. alleging. that. a: consign ment' of Indies. hats,, which. was! seized by: the United States. Maral for China under a writ. of attachment in the above: entitled. case, belonged to it, and that the above named: defendant. Of, J. Hirshora, never had any. title in or to. property so seized: The: complaint in-intervention prays that the property, be returned to Alexander Rubin & Ca, and that it have and recover judgment against the above named plaintiffs for damages. as. a result of such seizure, The solar question for decision ig whether, upon. the evidence present on: tio roaring, the intervener is entitled. recover this property. The plains tiffs contend that the property, seized under the attachment was. the prox perty of the defendant M.. Ji Hirshorn, while the intervener con tends that it never parted with. the lute to this property.
"From the evidence offered at the hearing it appears that on the 8th day of October, 1927, M. J. Hirstiora, the above named defendant, entered Into a contract with the Alexander Rubin & Ca, in the city: of San Francisco, California, as follows, "It is hereby agreed by Alexander Rubin & Ca, and M. J. Hirshorn that M. J. Hirshorn' will take consignment of ladies hats to Chinas Same to be cither paid for as per invoice, or returned to. Alexandac Rubin & Ca, not later than February. 1, 1928.
(Signed) M.-M, J. Hirshorn,, Alexander Rubin & Cou, by Alexander Rubin, "Thereupon Hirshorn took the hats, together with the invoices, and eft for Shanghai, Chine, Whom ho arrived in China he entered the-Hats fat the Customs as his own property, and) thereafter took them to tue 'Astor House Hotel in the city, of hanghai, where he proceeded to sell them' to the retail trade as. his at prices in excess prices. Hirshora testified that he has made no report fof such sale to Alexander Rubin. Ca,, and that the profits derived: from the sale of such hats belonged to him; that his responsibility te Alexander Rubin Ca, was to pay. that company the invoice prices: of all hats which he, Hirshorn, shoultt sell, and that ho had the privilege, under his contract, of returning, all: hats which ho did not dispose of before February 1, 1928, to Alexander Rubin & Ca, It is true that Hirshorn claimed upon' the witness stand that these huts seized under the writ of attachment fare the property of Alexander Rubin & Ca, and that he, Hirshorn, never obtained fany title to such property.
Jedgment, however, the question of Hirshorn's title must be determined by the terms. of his contract. with the Alexander Rubin & Ca., and his facts relative thereto, prior to: the assertion of this claim by the: me tervonor.
"The mero fact that the contract contains the phrase "that M. Wirshorn will take a consignment of Indies hats to China," is not determinative or controlling of the tques'ion ay to whether it was. the intention of the parties that the title to such corsigmment of hats wae to remain in Alexander Rubin & Ca, The language which follows that phrase is very significant, and im my judgment operated to make the. contract one of "'sale or return." The language is as follows: "Same to be either paid for, as por invoice, of returned. to Alexander Rubin. Go. not later than February 1, 1928." There are numerous cases" whicl n such a construction where: the language ome ployed is similar to that found! in. the contract here under considerer the case of Sturm vy. Boker, 150 U. S. 328, My, Justice Inoket stated the rule as follows:
"The class of contracts, known: mie or returns exiabe Teturn ins not Character' or quality of the property ide buat reste. entirely upon" the option of the to rotnin: oF. tle passes to the {fo his option to return the property within, time, specified, of a reason time, and. it before: the: expen: fF the exercise the "are perty im am satisfied that under the authorities hereinbefore referred' th, that this contract between Hirshorm and the intervener was.a contract!
Jof "sale or return." None of the: idements invariably found in agency are present here. It does: not appear that Hirshorn was. for
Text read from the printed page and cleaned; old type leaves the occasional error.