maining unpaid, it nevertheless violates a provision in the policy on the property, avoiding it if the interest of the insured be other than unconditional and sole ownership. McWilliams v. Cascade F. & M. Ins. Co. (Wash.) supra. And following Westchester F. Ins. Co. v. Weaver (Md.) supra, the court, in Ledvinka v. Home Ins. Co. (1921) 139 Md. 434, 19 A.L.R. 167, 115 Atl. 596, held that one purchasing an automobile under a conditional-sale contract whereby title was reserved in the vendor to secure notes for the purchase price is not the unconditional and sole owner within the meaning of the clause in the policy insuring the car against theft, although he pays the notes as they mature after the car is stolen. To the same effect is Ballard v. Globe & R. F. Ins. Co. (1921) 237 Mass. 34, 129 N. E. 290. And so, where a policy of fire insurance was issued to plaintiff on a building and certain machinery therein, and the plaintiff warranted that he was the sole, undisputed owner, absolutely and in fee simple, of the property mentioned and the land on which it stood, the court, in Cuthbertson v. North Carolina Home Ins. Co. (1887) 96 N. C. 480, 2 S. E. 258, held that the warranty was breached and the policy void, where it appeared that the machinery had been purchased by him from the manufacturer under a conditional-sale contract whereby title was reserved until the purchase price was fully paid, and that he held the land by a lease. But see Lancaster v. Southern Ins. Co. (1920) 153 N. C. 285, 138 Am. St. Rep. 665, 69 S. E. 214, infra, which holds the conditional vendee the "sole and unconditional owner" of the property. In Lasher v. Northwestern Nat. Ins. Co. (1879) 18 Hun (N. Y.) 98, property held by the plaintiff under a conditional-sale contract was insured by the vendee as "her" property under a policy providing that if the interest of the insured in the property, whether as owner, trustee, consignee, lessee, mortgagee, or otherwise, were not truly stated in the policy, it should be void, and also that if the interest of the insured were any other than the entire and unconditional ownership of the property, the policy should be void unless that fact were indorsed on the policy, it was held that the policy was void because the insurer had not truly stated her title to the property. See also Lasher v. St. Joseph F. & M. Ins. Co. (1881) 86 N. Y. 423. And in Brown v. Commercial F. Ins. Co. (1888) 86 Ala. 189, 5 So. 500, where property was insured under a policy providing, among other things, that it should be void if the assured were not the sole and unconditional owner, and it appears that he held the property insured under an executory contract of purchase, whereby the vendor undertook to convey the property to him upon the payment of the purchase price, which contract also provided that if the insured failed to make payment, it should, at the option of the vendor, be forfeited and determined, the policy is void, for clearly the assured is not the sole and unconditional owner. However, some courts hold that the conditional vendee of personalty is to be regarded as the sole and unconditional owner within the meaning of a provision in an insurance policy declaring it void if the insured's interest be other than sole and unconditional ownership; the theory of these courts is that a conditional-sale contract confers upon the vendor the absolute right to the purchase price, and imposes on the vendee the unconditional obligation to pay, and the risk of loss incident to the full, complete ownership. This rule has been applied in the following cases: Phenix Ins. Co. v. Hilliard (1910) 59 Fla. 590, 138 Am. St. Rep. 171, 52 So. 799; Scottish Union & Nat. Ins. Co. v. Strain (1902) 24 Ky. L. Rep. 958, 70 S. W. 274; Lancaster v. Southern Ins. Co. (1910) 153 N. C. 285, 138 Am. St. Rep. 665, 69 S. E. 214. See also Pennsylvania F. Ins. Co. v. Hughes (1901) 47 C. C. A. 459, 108 Fed. 497; Johnson v. Farmers' Ins. Co. (1905) 126 Iowa, 565, 102 N. W. 502, and Light v. Greenwich Ins. Co. (1900) 105 Tenn. 480, 58 S W. 851. Thus, the vendee of machinery under a contract of sale reserving title in the vendor until full payment of the purchase price, and giving him the right to take possession solely for the purpose of selling the property to realize the purchase price, by which the vendee guaranteed the vendor against loss or damage by fire, and expressly stipulated that he was in no event entitled to a rescission or to an abatement of price, is the sole and unconditional owner of the property within the meaning of a provision in the fire insurance policy thereon, for, by fair construction and intendment, "the unconditional and sole ownership" is in those upon whom the loss insured against would certainly fall. Phenix Ins. Co. v. Hilliard (Fla.) supra. "The just and reasonable purpose of insurance policies in requiring the insured to have the 'unconditional and sole ownership' of the property insured is to give protection to only those upon whom the loss insured against would inevitably fall but for the insurance, and to avoid taking risks for those whose lack of interest or whose contingent interest in the property insured might tend to encourage carelessness or wrongdoing in the use or preservation of the property." Ibid. In Light v. Greenwich Ins. Co. (Tenn.) supra, the court seems to have been of the opinion that a conditional vendee was the sole and unconditional owner of property within the meaning of a provision in an insurance policy requiring such ownership; however, the decision in that case that a policy of insurance issued to the vendee under a conditional-sale contract was not void, notwithstanding a provision requiring sole and unconditional ownership, rested partly, at least, on a statute providing that no written or oral misrepresentation or warranty by the insured in his application for a policy or in the policy shall be deemed material, or shall defeat or void the policy, unless made with actual intent to defraud; it appearing in the case that the insured had not been guilty of fraud, conceal ment, or misrepresentation in procuring the policy. And the Federal court in Sims v. American Cent. Ins. Co. (1924) 296 Fed. 115 (certiorari denied in (1924) 265 U. S. 595, 68 L. ed. 1197, 44 Sup. Ct. Rep. 638), construing the same statute, reached a similar conclusion. In this case the court remarked, in passing, that the Tennessee decisions impliedly, if not expressly, hold that the purchaser under a conditionalsale contract, who is liable for the entire purchase price, is the equitable owner of the property, and entitled to call himself, for insurance purposes, the sole and unconditional owner. However, the Massachusetts court in Ballard v. Globe & R. F. Ins. Co. (1921) 237 Mass. 34, 129 N. E. 290, in passing upon whether a vendee under a conditional-sale contract was the sole and unconditional owner of the property, said, in reference to a statute similar to the one involved in the Light Case (Tenn.) supra, that such statutes do not apply to conditions precedent. This, however, is beyond the scope of the present annotation. In North Carolina, where it is established that when a vendor sells goods and takes a note for the purchase price, retaining title as security. for the purchase money, and delivers possession, the obligation to pay is absolute, and the loss of the goods from fire must fall. upon the vendee, the vendee is the sole and unconditional owner of the goods within the meaning of a provision in a fire insurance policy thereon, declaring the policy. void if the interest of the insured is other than unconditional and sole ownership. Lancaster v. Southern Ins. Co. (1910) 153 N. C. 285, 138 Am. St. Rep. 665, 69 S. E. 214. And in Scottish Union & Nat. Ins. Co. v. Strain (1902) 24 Ky. L. Rep. 958, 70 S. W. 274, where the insurance company contended that a policy of insurance on certain property was void for the reason that the insured was not the sole and unconditional owner, and it appeared that the property had been purchased under a conditional-sale contract reciting that a certain amount had been paid in cash, and interest-bearing notes for the balance had been executed, which further provided that the vendor was authorized to take possession of and remove the property in event that any of the notes were not paid when due, the court said that it could not be doubted that legal title to the machine was in the insured, and that she was the sole and unconditional owner thereof. In Johnson v. Farmers' Ins. Co. (1905) 126 Iowa, 565, 102 N. W. 502, it was contended that the insured was not the sole owner of the property insured, and evidence was introduced of a contract by which he had purchased a part of the goods destroyed, wherein he had agreed that title and ownership should remain in the vendor until the goods were fully paid for; the court said, however, that this did not, of itself, negative an absolute sale of the goods purchased by the plaintiff, and as none of the contracts were set out in full in the abstract, it could not say that the plaintiff did not, for the purposes of the case, become the absolute owner of the goods. And the court remarked further that the point that the plaintiff was not the sole owner was not relied upon by the defendant with any great confidence. In Pennsylvania F. Ins. Co. V. Hughes (1901) 47 C. C. A. 459, 108 Fed. 497, it was held that the rule in Alabama that a vendee of land in actual possession under a valid executory contract of sale, and holding a bond for title upon full payment of the purchase price, is the sole and unconditional owner of the property within a forfeiture provision of an insurance contract requiring that character of ownership, applied also to personal property included in a contract for the sale of real estate, whereby title was only to pass upon full payment of the purchase price. stitute a breach of the condition of a fire insurance policy requiring "sole and unconditional ownership," even though possession is transferred to the vendee. Houseman v. Home Ins. Co. (1916) 78 W. Va. 203, L.R.A.1917A, 299, 88 S. E. 1048. And so, where the insured, before taking out the policy, made a lease of the goods, amounting to a conditional sale thereof, he is, notwithstanding this transaction, the sole and unconditional owner of the property insured within the meaning of a provision in the policy requiring such ownership. Burson v. Fire Asso. of Phila. (1890) 136 Pa. 267, 20 Am. St. Rep. 919, 20 Atl. 401. It appears also in this case that the insured had previously taken out a policy of insurance on the property which had expired, and was told by the agent, when he took out the second policy, that it was like the other, when in fact it differed, in that it required the insured to be the sole and unconditional owner. And in Carrigan v. Lycoming F. Ins. Co. (1881) 53 Vt. 418, 38 Am. Rep. 687, it was held that a conditional sale of personalty, whereby the vendor remained in possession of the goods, was not a violation of the sole and unconditional ownership clause in a policy issued to the vendor. So, an insured is an unconditional and sole owner of property within a provision in his policy avoiding it if his ownership be otherwise, although he may have made a conditional sale which he cannot enforce, if the risk of loss by fire continues to be his. Rochester German Ins. Co. v. Monumental Sav. Asso. (1908) 107 Va. 701, 60 S. E. 93. See also Brunswick-Balke-Collender Co. v. Northern Assur. Co. (1905) 142 Mich. 29, 105 N. W. 76, where it was held that notwithstanding the fact that the insured was a vendor under a conditional sale, a policy conditioned on sole and unconditional ownership was not void, in the absence of any representation by the insured as to his title in securing the policy, application for which was verbal. However, the Oklahoma court has held that, notwithstanding a provision in a contract for the sale of a stock of merchandise that the title thereto should not fully pass until the notes given for the purchase price were paid, and another provision requiring the vendee to make weekly and monthly statements of sale to the vendor, the vendor who places the vendee in possession, with authority to sell, is not the unconditional and sole owner of the merchandise, so that a policy of insurance issued to him, with a provision avoiding it if the interest of the insured be other than the unconditional and sole ownership, is void. Phoenix Ins. Co. v. Quinette (1912) 36 Okla. 384, 128 Pac. 722. The court said that from the time the contract of sale was made and the vendee placed in possession, the vendor, if he held title at all, held it as trustee for the vendee until the payment of the price, and that it was, therefore, clear that he was not the unconditional and sole owner. And it has been held that the vendor of a tug, which he had sold to another under a contract giving the vendee possession, but reserving title in the vendor until the full amount of the purchase price was paid, is not the sole and unconditional owner thereof, within a provision in a policy on the tug avoiding it in case the interest of the insured is other than unconditional and sole ownership. Point Gratiot Sand & Gravel Co. v. Hartford F. Ins. Co. (1912) 77 Misc. 221, 136 N. Y. Supp. 877, affirmed in (1913) 165 App. Div. 924, 141 N. Y. Supp. 1142, which is affirmed in (1915) 216 N. Y. 661, 110 N. E. 1048. G. S. G. W. H. EDGAR et al., Plffs. in Err., V. GROCERS' WHOLESALE COMPANY. United States Circuit Court of Appeals, Eighth Circuit · (298 Fed. 878.) April 7, 1924. Sale, § 115 tion. provision against commercial impracticability construc 1. A provision in a contract between experienced dealers, for purchase and sale of a large quantity of sugar at an abnormally high price at a time when there has been a violent increase in the price of such commodity, that it is subject to strikes, fires, transportation, and business conditions, and other extraneous causes which render performance commercially impracticable, does not justify the purchaser in refusing to accept delivery when it becomes due, because at that time the price has fallen $3 per hundred pounds and the demand for the commodity is poor. [See note on this question beginning on page 215.] ERROR to the District Court of the United States for the Southern District of Iowa (Wade, J.) to review a judgment in favor of defendant in an action brought to recover damages for alleged breach of a contract to purchase sugar. Reversed. The facts are stated in the opinion of the court. Messrs. William L. Carpenter and The fact that defendant, by performing the contract, would sustain financial loss presently or in the future, does not make such performance "commercially impracticable" within the meaning of the contract, and does not justify defendant's refusal to perform. Cold Blast Transp. Co. v. Kansas C. C. A. 25, 114 Fed. 77; Michigan A contract is not commercially impracticable of performance because some loss, though small, would result from performance. Pressed Steel Car Co. v. Eastern R. Co. 57 C. C. A. 635, 121 Fed. 609. Mr. H. E. Spalding also for plaintiffs in error. Messrs. Harley H. Stipp, Eugene D. Perry, Robert J. Bannister, Vincent Starzinger, and Fred A. Little, for defendant in error: In holding for naught the phrase in the contract "commercially impracticable," the court ignored the universal rule of judicial interpretation of it. United States v. Thornburg, 6 Fed. 41, 7 Fed. 190; United States v. Roehrig, 51 Fed. 302; Ellis v. Cricket Coal Co. 166 Iowa, 656, 148 N. W. 887; Wooters v. International & G. N. R. Symes, District Judge, delivered the opinion of the court: A stipulation of facts was introduced at the trial of this case, from which it appears that Edgar & Son, the plaintiff here and below, is a copartnership located in Detroit, Michigan. That after some negotiations plaintiff prepared a contract, dated June 9, 1920, and forwarded it to the Grocers' Wholesale Company, defendant here and below, at Des Moines, Iowa. The latter signed and returned it to the plaintiff, who thereupon duly executed it. This contract witnessed the sale by Edgar & Son to the Grocers' Company of 3,600 bags of granulated sugar at the price of $25.50 per 100 pounds, f. o. b. New Orleans; 1,800 bags to be shipped promptly and 1,800 bags in August following. It also contained this clause, which is the subject of this controversy: "All contracts subject to strikes, fires, transportation, and business conditions, and other extraneous causes which render performance commercially impracticable." Plaintiff shipped to the defendant the first instalment of 1,800 bags, |