In re GOSCH. BERLIN MACH. WORKS v. HILTON & DODGE LUMBER CO. et al., 126 F. 627

PARDEE, Circuit Judge (after stating the facts as above). The District Court denied petitioner’s intervention on the ground that the conditional sale of the property was not duly recorded within 30 days from its date, as required by the laws of Georgia.

Section 2776 of the last Code of Georgia (1895) provides: “Whenever personal property is sold and delivered with the condition affixed to the sale, that the title thereto is to remain in the vendor of such personal property until the purchase price thereof shall have been paid, every such conditional sale, in order for the reservation of the title to be valid as against third parties, shall be evidenced in writing, and not otherwise.

And the written contract of every such conditional sale shall be executed and attested in the same manner as mortgages on personal property; as between the parties themselves, the contract made by them shall be valid, and may be enforced whether evidenced in writing or not.” The next section (2777) provides: “Conditional bills of sale must be recorded within thirty days from their date, and in other respects shall be governed by the laws relating to the registration of mortgages.” The preliminary contract in this case was entered into and bears date February 1, 1902.

It could not well have been recorded on that date, because it was negotiated by an agent in Georgia, and was made subject to the approval of the petitioner, at Beloit, Wis. It appears to have been approved by the petitioner the 4th of February, 1902, but even then it was not ready for record, because the machine was to be delivered subject to the approval of the purchaser. The machine was delivered and the contract was acknowledged and recorded on the 20th day of June, 1902. Laws should be construed with reference to the advantages to be derived therefrom, and the mischiefs to be remedied.

Up to the time of the delivery of the machine, when the contract of sale became effective between the parties, it was useless to record the same, because up to that time no creditors, secured or otherwise, could be affected thereby. It is said that “the law does not require vain and useless tilings,” but what use could result from a record of the preliminary contract in this case before delivery thereunder?

The conditions stipulated in the contract in this case were (1) as to the approval of the Berlin Machine Works; (2) as to the approval of the purchaser after delivery; (3) that until payment the Berlin Machine Works was to retain title, and it is in regard to the last condition that the Georgia law requiring conditional sales to be recorded is concerned. Taking all the facts and conditions into consideration, what was the date of the contract of sale, within the meaning of

section 2777 of the Georgia Code of 1895 ? All the reasons and purposes of the law, as we understand them, require us to hold that the date of the real contract of sale was the date of delivery. The exact point does not appear to have been ruled in the Supreme Court of Georgia, except as in Wheeler v. Bank, 105 Ga. 57, 61, 31 S. E. 48, 49, where the court, without discussing the point, used this language: “Treating the date of the real contract as of the time of delivery, which was,” etc.

It is claimed, and perhaps justly, that this is obiter; but it seems to us to be well said, and, if not controlling as affecting the question before this court, it is very persuasive to the effect that when the Supreme Court of Georgia does pass upon the question of the date for record, under

section 2777, of a conditional sale like the one now before us, the date of the real contract will be held to be as of the time of delivery. As we hold that the conditional sale was duly recorded, it is unnecessary to- pass upon other interesting questions argued. The finding and order of the referee were correct, and are approved, and the case is remanded, with instructions to proceed accordingly.