provision (section 9) taken from an earlier Imperial Act (96) as follows:

Where a person having bought or agreed to buy goods obtains with the consent of the seller possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.

It will be observed that the section in the British Columbia Factors' Act is more extensive than that in the Sale of Goods Act (B.C.), in that the former includes not only sales, pledges, etc., but agreements for sales, pledges, etc., and that the clauses are alike, except as to the italicized words. Neither enactment repeals the other, and the result is that both are in force. The sections of the Imperial Acts, from which these provisions were taken, are also both in force in England.

The authority of a mercantile agent' to pass the title to goods is declared in section 3 of the Factors' Act (B.C.), as follows:

Where a mercantile agent is, with the consent of the owner, in possession of goods, or of documents of title to goods, any sale, pledge, or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent, shall (subject to the provisions of that Act) be as valid as if he were expressly authorized by the owner of the goods to make the same; provided that the person taking under the disposition acts in good faith, and has not at the

(96) The Factors' Act 1889, 52 & 53 Vict. (Imp.), c. 45, s. 9.

time of the disposition notice that the person making the disposition has not authority to make the same (97).

It is also enacted that for the purposes of the Factors' Act (B.C.) the consent of the owner shall be presumed in the absence of evidence to the contrary (98).

A factor is not by his employment authorized to pawn or pledge goods entrusted to him, and apart from certain statutory provisions, such as the one just mentioned, which validate transfers of that nature made by him, such a disposition is not binding upon his principal (99).

A conditional vendee is, therefore, by virtue of these clauses in the Sale of Goods Act and in the Factors' Act, enabled to make as valid a sale or pledge of the chattel which he has purchased as if he were in possession thereof with the consent of the owner, with authority either to sell the goods or to raise money on them, (100) as a factor or mercantile agent may do.

Under the Imperial Factors' Act of 1889 (101) it has been decided by the House of Lords in Helby v. Matthews that the expression "having agreed to buy goods," which is used in that Act, and likewise in the British Columbia Acts before mentioned, applies to a person who has bound himself by agreement to buy, and does not include a person who has merely an option to buy (102).

In that case the owner of a piano agreed to let it on hire, the hirer to pay a rent by monthly instalments, on the terms that the hirer might terminate the hiring

(97) R.S. B.C. 1897, C. 4, S. 3 (1).

(98) R.S.B.C. 1897, c. 4, s. 3 (4).

(99) Cole v. North Western Bank (1875) L. R. 10 C.P. 354, 363. (100) R.S. B.C. 1897, c. 4.

(101) 52 and 53 Vict., c. 45, s. 9.

(102) Helby v. Matthews (1895) A.C. 471 (H.L.), reversing S.C. (1894) 2 Q. B. 262.

by delivering up the piano to the owner, he remaining liable for all arrears of hire; also that if the hirer should punctually pay all the monthly instalments, the piano should become his sole and absolute property, and that until such full payment the piano should continue the sole property of the owner. The hirer received the piano, paid a few of the instalments and pledged it with a pawnbroker as security for an advance. It was held that under the agreement the hirer was under no legal obligation to buy, but had an option either to return the piano, or to become its owner by payment in full; by putting it out of his power to return the piano he had not become bound to buy; that he had, therefore, not "agreed to buy goods" within the meaning of the Factors' Act, and that the owner was entitled to recover the piano from the pawnbroker. The question is not whether the owner has agreed to sell but whether the hirer has agreed to buy. It is not the owner's acts which are dealt with, but the acts of the hirer, and therefore even if the owner irrevocably binds himself to sell, but the hirer does not bind himself to purchase, even though he has an option, the hirer cannot possibly be "a person having bought or agreed to buy" (103).

If, however, there is an absolute obligation to acquire the property in the chattel and to pay all the instalments, whether described as for rent or hire, then the case is within the Acts and the title will pass on a sale by the conditional vendee, notwithstanding his own want of title, if the sale pledge or other disposition thereof be to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods (104).

(103) Helby v. Matthews (1894) 2 Q.B. 262; (1895) A.C. 471. (104) R.S.B.C. 1897, c. 4, s. 10; R.S.B.C. 1897, c. 169, s. 37 (2); Lee v. Butler (1893) 2 Q.B. 318; Thompson v. Veale, 74 Eng. L.T.

It is therefore necessary, if it is desired to avoid. the far-reaching effects of section 10 of the Factors' Act and of section 37 of the Sale of Goods Act, that the contract should be one of hiring with an option. of purchase, as was the case in Helby v. Matthews, rather than a contract of hiring with an obligation to purchase. The following was the form of agreement under consideration in that case (105).

"This Agreement, made the 23rd day of December, 1892, between Charles Helby, of 22 Baker Street (hereinafter called the 'owner'), of the one part, and Charles Brewster, of 24 Chester Street, Kennington Road, S. E. (hereinafter called the 'hirer'), of the other part, Witnesseth that the owner agrees, at the request of the hirer, to let on hire to the hirer a pianoforte, No. 896, maker, Rass, and in consideration thereof the hirer agrees as follows:

"I. To pay the owner, on the 23rd day of December, 1892, a rent or hire instalment of 10s. 6d., and 10s. 6d. on the 23rd of each succeeding month.

"2. To keep and preserve the said instrument from injury (damage by fire included).

"3. To keep the said instrument in the hirer's own custody at the above named address, and not to remove the same (or permit or suffer the same to be removed) without the owner's previous consent in writing.

"4. That if the hirer do not duly perform this agreement, the owner may (without prejudice to his rights under this agreement) terminate the hiring and retake possession of the said instrument; and for that purpose leave and license is hereby given to the owner (or agent and servant, or any other person employed by the owner) to enter any premises occupied by the hirer, or of which the hirer is tenant, to retake possession of the said instrument, without being liable to any suit, action, indictment or other proceeding by the hirer, or anyone claiming under the said hirer.

"5. That if the hiring be terminated (under clause A below) and the said instrument be returned to the owner, the hirer shall remain liable to the owner for arrears of hire up to the date of such return, and shall not on any ground whatever be entitled to any allowance, credit, return or set off for payments previously made.

"The owner agrees:

"A. That the hirer may terminate the hiring by delivering up to the owner the said instrument.

"B. If the hirer shall punctually pay the full sum of £18 18s., by Ios. 6d. at date of signing, and thirty-six monthly instalments of

(105) 1895 A.C. 471; 64 L.J.Q.B. 465.

Ios. 6d. in advance as aforesaid, the said instrument shall become the sole and absolute property of the hirer.

"C. Unless and until the full sum of £18 18s. be paid, the said instrument shall be and continue to be the sole property of the owner.'

A hiring contract would appear to be subject to the requirements of section 25 of the Sale of Goods Act as to being evidenced in writing, and being filed as a conditional sale agreement, although it provides for a mere option of purchase.

Where the hire-purchase contract is one by which the conditional vendee agrees to buy' as distinguished from his having a mere option to buy, it is necessary to consider whether the third party claiming title through the conditional vendee adversely to the conditional vendor, is a person receiving the chattel 'in good faith without notice of any lien or other right of the original seller.' The question of notice from the mere fact of registration has been discussed under that heading (106).

Whether or not the reserved title and claim of the conditional vendor be in strictness a 'lien', there seems to be no question that it comes within the phrase 'other right of the original seller' (107).

Purchase from conditional vendee-North-West Territories.-Section 10 of the Factors' Ordinance of the North-West Territories (108) is identical with section 9 of the Imperial Factors' Act of 1889 to which reference has been made ante p. 124, with a similar statutory definition as to the meaning of the term "mercantile

(106) Ante p. 110.

(107) Lee v. Butler (1893) 2 Q.B. 318; Helby v. Matthews (1895) A.C. 471.

(108) Con. Ord. N.W.T. 1898, c. 40, re-enacting Ordinance No. 9 of 1896.