*267DEFENDANT’S APPEAL.
The court below, on the first issue, charged the jury as follows:
“Some question has arisen about title to those cabs, and I have held, gentlemen, as a matter of law, that the Corbitt Company by that purchase did not acquire a good title to the property, and the first issue or question which will be submitted to you reads as follows: (quotes issue).
“I instruct you, gentlemen of the jury, that if you believe all of the evidence, and find the facts to be as the evidence tends to show, you will answer that issue Yes.”
“The paper writing sued on is what the law calls a bailment, that is where a party places his property in care of another for a special purpose, retaining title to the same, and the caretaker is not liable as a purchaser, such party is called a bailee. Such bailee has no power except as contained in the document . . .
“Therefore, I have charged you if you believe the evidence and find the facts to be as the evidence tends to show, you will answer that issue Yes.”
Later on the same issue he further charged :
“I decided as a matter of law that by the purchase of the property he did not get a good title, and if I am wrong about that the Supreme Court up at Ealeigh will reverse me and send it back here for a new trial. So take the case now, gentlemen, and answer this second issue, remembering that the burden of proof as to the value of the cabs is upon the plaintiff in the case.”
The ownership of the property was the principal fact at issue. The statement of the court below that it had decided this fact as a matter of law, in effect, took the case from the jury on the issue of ownership and at least constituted such an expression of opinion by the court as would necessitate a new trial unless the record discloses that as a matter of law the plaintiff is, in fact, the owner of the property in controversy.
The 35 cabs, which are the subject matter of this suit, were delivered by the plaintiff to J. N. Traxler under a written contract signed by him and the Motor Truck Company.
It is the contention of the plaintiff that the delivery of the cabs to J. N. Traxler constituted a bailment, and that any disposition of the cabs thereafter which was not authorized by the plaintiff, conveyed no title to the property. If its premise is correct its conclusion is sound.
However, upon a careful examination of the contract upon which plaintiff relies we are of the opinion that it constitutes a conditional sale contract and not a bailment.
When it appeared that the purchaser was unable to pay cash for the shipment plaintiff entered into an agreement with the Olydedale Motor *268Truck Company and J. N. Traxler under tbe terms of wbicb tbe cabs were delivered and one-balf of tbe purchase price, to wit, $3,500, was paid. Traxler entered into tbis agreement “for bimself and for tbe Clydedale Motor Truck Company” of wbicb be was treasurer. He agreed tbat be would place tbe cabs in storage at bis expense “for tbe benefit of tbe Metropolitan Body Company, wbo shall at all times be considered tbe owners of said shipment until paid for as hereinafter stated.” He further agreed to obtain fire and theft insurance at bis own expense with tbe plaintiff as beneficiary and to release to tbe Clydedale Motor Truck Company tbe cabs as and when be received $100 per cab and tbe said sum or sums were remitted to tbe plaintiff. He likewise agreed “for bimself and as Treasurer of said Clydedale Motor Truck Company,” to pay for tbe cabs on or before sixty days after tbe signing of tbe agreement and tbat upon bis failure so to do be would cause tbe remaining unpaid-for cabs to be shipped to tbe plaintiff. It was.further stipulated tbat “tbis agreement in no way releases tbe Clydedale Motor Truck Company from its obligation under its contract of purchase, unless and until tbe full sum has been fully paid for.
“It is further agreed that for all cabs unpaid for, tbe title to tbe same shall remain in” tbe plaintiff.
Tbis contract is signed by tbe Clydedale Motor Truck Company and by J. N. Traxler.
Under tbe terms of tbe agreement tbe alleged bailees bound themselves as purchasers, tbe plaintiff retaining title until tbe purchase price was paid. Traxler and tbe sales company not only paid one-balf of tbe purchase price but likewise agreed to be and become bound for tbe payment of tbe balance. Neither was under obligation to return tbe property except upon a default in the obligation to pay tbe purchase price.
Tbe agreement is an unequivocal contract to buy and to pay tbe purchase price. Tbe alleged bailees are under tbe unqualified obligation to purchase. Tbe duty to return tbe specific articles is conditioned upon their failure to pay. Title to tbe property changed upon tbe delivery and Traxler and tbe truck company became debtors. See Haak v. Linderman, 64 Pa. St., 4991, Am. Rep., 612, 3 R. C. L., 77; Wetherell v. O’Brien, 140 Ill., 146, 29 N. E., 904, 33 A. S. R., 221; B. F. Sturtevant Co. v. Cumberland, Dugan & Co., 106 Md., 587, 68 Atl., 351, 14 Ann. Cas., 675; Sattler v. Hallock, 160 N. Y., 291, 54 N. E., 667, 73 A. S. R., 686, and note, 46 L. R. A., 679; Bretz v. Diehl, 117 Pa. St., 589, 11 Atl., 893, 2 A. S. R., 706, and note; Smith v. Niles, 20 Vt., 315, 49 Am. Dec., 782, 3 R. C. L., 73.
...Under tbe law of Ohio, General Code of Ohio, sec. 8568, tbis agreement is void as to all subsequent purchasers and mortgagees in good *269faitb and for value unless recorded, and it is admitted that tbe agreement is not of record as required by this statute.
It follows that the plaintiff is not the owner of the cabs as against the defendant if the defendant is, as it alleges, a purchaser in good faith for value. The quoted portion of the charge must be held for error.
There are facts and circumstances fro and con appearing in the record bearing on the question as to whether the defendant is a purchaser in good faith and for value. As there must be a new trial it would serve no good purpose, and might prove prejudicial to one or the other of the litigants, to disehss in detail the evidence thereon. Suffice it to say that this question should be submitted to and determined by a jury upon a proper issue.
In its answer the defendant alleges that J. N. Trailer held possession of the cabs in controversy as agent for the plaintiff. Whether, under this allegation, the defendant now may assert that the instrument under which plaintiff claims title is an unrecorded conditional sale contract is not presented on the record for determination.
Plaintiff's Appeal.
As the errors pointed out on defendant’s appeal require a new trial the questions presented by plaintiff’s appeal become immaterial. Consideration thereof is not essential.
On defendant’s appeal,
New trial.
Plaintiff’s appeal
Dismissed.