Speyer & Co. v. Baker. the goods within the statute be shown, either from the evidence offered or by construction of law, the plaintiffs' right to them can not be maintained until at least fifty per cent. of the amount paid is refunded to the defendant as provided in the conditional sale statute, unless the property was broken and actually damaged, when a reasonable compensation for such breakage and damage should be deducted. Weil v. The State, 46 Ohio St., 450. Now the record in this case contains testimony tending to prove that this transaction was in fact a sale within the statute, the vendee never being vested with the absolute title; that such was the understanding of both parties at the time of the sale; that a statement was made by one of the vendors when the chattel mortgage was given, to the effect that the goods were theirs until paid for in full, when they would then belong to the defendant. Kendrick v. Beard, 81 Mich., 182; Jones on Chattel Mortgages, sections 23 and 24; Cornell v. Hall, 22 Mich., 377; McMillen et al. v. Bissell, 63 Mich., 69; Jones on Mortgages, section 324; Susman v. Whyard, 149 N. Y., 127; Pierce v. Robinson, 13 Cal., 116; Peugh v. Davis, 96 U. S., 332. From these cases and others to follow, it is evident that the form of a contract does not preclude inquiry into its real character, which may be only partly represented by the writing, or may be disguised or wholly concealed by it; and further that courts at all times seek to discover the intention of the parties, whenever that intention is not fully or truly represented by the written instrument. Coleman et al. v. Miller et al., 6 Bull., 199; s. c. 8 Dec. R., 179; Wilson v. Giddings, 28 Ohio St., 554; Patrick v. Littell, 36 Ohio St., 79; Sun Fire Office Speyer & Co. v. Baker. v. Clark et al., 53 Ohio St., 414; Wright v. Bates & Miles, 13 Vt., 341. In some of the states these instalment houses have termed their contracts leases and the instalments paid as rent, and on default in payment, the lease should be deemed forfeited and possession of the property recoverable by the vendor without process of law, the purpose of such agreement being to prevent any creditor of the purchaser from levying on his interest in the goods. The courts have uniformly termed such contracts conditional sales. Cowan v. Singer Mfg. Co., 92 Tenn., 376; Hays v. Jordon, 85 Ga., 741; Preston v. Whitney, 23 Mich., 260; Hamilton v. Singer Mfg. Co., 54 Ill., 370; Hervey v. R. Is. Locomotive Works, 93 U. S., 672; Murch v. Wright, 46 Ill., 487; Gorham v. Holden, 79 Me., 317; Baldwin v. Van Wagner, 33 W. Va., 293; Lucas v. Campbell, 88 Ill., 447; Hine v. Roberts, 48 Conn., 267. From the foregoing we contend that if the courts have the power to look under the cover, as it were, and detect a device in one case, they have it in another, if the same can be discovered, especially when the object of the investigation in both cases is identical, viz., the intention of the parties; and that since the law permits proof to be offered and considered in all cases in order to get at the real transaction, it was error in refusing to consider the testimony in the case at bar, tending to establish a sale within the statute, and this testimony should have been submitted to the jury under proper instructions. The court erred in charging that a chattel mortgage given under the circumstances in this case does not come within the purview of the conditional sales statute. Smith v. De Vaughn, 82 Ga., 574. Speyer & Co. v. Baker, As conclusive authority upon this point we especially rely upon the case of Singer Mfg. Co. v. Caldwell, 55 Ohio St., 638. This case presents identically the same set of facts as does the case at bar. Preston v. Whitney, 23 Mich., 260. To hold that the taking of a chattel mortgage under the circumstances of this case would take the transaction out of the statute, is to allow the vendor to defeat the operation of the statute by a mere makeshift, and to permit the continuance of the evil the legislature sought to remedy. What the law was before this conditional sale statute was passed, what the mischief and the necessity that called forth the act, are fully set out in the case of Weil v. The State, 46 Ohio St., 454. How all these devices should be dealt with by the courts is forcibly laid down by Maxwell on Statutes, chap. 4, section 1, on "Construction to Prevent Evasion." WILLIAMS, J. The contention in this case relates to the applicability to the transactions involved, of the act of May 4, 1885 (82 Ohio Laws, 238), now sections 7913-72, 73, of the Revised Statutes. The statute, in terms, applies to all sales of chattels, "to be paid for in whole or in part in instalments, on condition that the same shall belong to the person purchasing the same whenever the amount paid shall be a certain sum, or the value of the property, the title to remain in the vendor until such sum, or the value of such property or any part thereof shall have been paid." And, it is made unlawful for any vendor of chattel property so sold, "or his agent or servant, to take possession of said property without tendering or Speyer & Co. v. Baker. refunding to the purchaser the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed fifty per cent. of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed." There was evidence at the trial, though it was not without conflict, from which the jury might have found that the sales made by the plaintiffs to the defendant of the property in question were conditional sales of the character defined by the statute; and the instructions which were requested, but re. fused by the court, were to the effect that, if the jury should find the sales to be of that nature the defendant's rights under the statute were unaffected by the mortgages given to secure instalments of the purchase price of the property. The refusal to so charge, and the charge given, appear to be placed upon the ground that the mortgages rendered the statute inapplicable; and that is the position taken by counsel for the plaintiffs in error, who express some apprehension that any other holding would discourage sales on credit, and unsettle chattel mortgage securities. We see no good ground for giving the mortgages the effect claimed for them, nor any sufficient cause for the apprehension expressed. Bona fide absolute sales of chattel property are not within the operation of the statute; neither are mortgages made in good faith to secure the purchase price of property sold at such a sale, nor mortgages made in good faith on property owned by the mortgagor to secure a Speyer & Co. v. Baker. valid debt arising otherwise than upon a conditional sale of the property. But the rights of parties to all conditional sales of personal property, as defined by the statute, are controlled by its provisions; and we find nothing in the statute which indicates an intention that those rights should be changed or affected in any way by the vendor taking a mortgage on the property. On the contrary, the statute appears to have carefully guarded against that result. It preserves in explicit terms, to the purchaser at such a sale, the benefits of its provisions even against express stipulation in the contract to the contrary, and though the contract be put in such form that the conditional character of the sale is not shown. The policy of the statute in this respect seems manifest. Purchasers on this plan are usually persons of small means, and unable to pay except in instalments; and such sales are, partly on that account, made at prices in excess of those charged in other cases. Payment of part of the instalments may amount to more than the actual worth of the property; and, on account of the unconscionable advantage which the vendor would otherwise have, by taking the property and retaining the money paid, the legislature deemed it proper to adopt the equitable rule of adjustment prescribed by the statute. That rule when properly observed will, we believe, be found fair and just to both parties. At all events, it enters into and becomes a part of every contract of conditional sale made after its adoption, as much so as if expressly embodied therein. And it is obvious that the statute would fail of its purpose if any instrument which the vendor might choose to exact at the time of the sale, could preclude an inquiry into the real nature of the trans |