54 BULLETIN 1106, U. S. DEPARTMENT OF AGRICULTURE 
ities of the respective parties with respect to the products involved. 
For instance, a contract could provide that the title to products 
passes to the association before delivery of them, but that the risks 
incident to their holding, handling, and delivery are on the pro- 
ducer, 5 
As between the parties to a marketing contract there is ap- 
parently no question but that the contract could be so drawn as to 
pass title to the association before the producer has delivered the 
products. 8 Man} T cooperative statutes expressly authorize the mak- 
ing of marketing contracts that pass title to the products involved 
prior to their delivery to associations formed under them. In many 
cooperative statutes language reading substantially as follows ap- 
pears : " If they (members) contract a sale to the association, it 
shall be conclusively held that title to the products passes absolutely 
and unreservedly, except for recorded liens, to the association upon 
delivery; or at any other specified time if expressly a?id definitely 
agreed in the said contract." 7 The language last quoted expressly 
authorizes the making of marketing contracts that pass title to pro- 
ducts prior to their delivery to an association. Obviously, a " pur- 
chase " of products after their sale to an association is not a recorded 
lien. 
In order to have the marketing contract pass title to the products 
covered by it, prior to the time that the products are delivered to 
the association, the marketing contract should so read as to make 
plain that it is a contract of sale rather than a contract to sell. If 
the marketing contract reads that the producer agrees to sell and the 
association agrees to buy, then this language, standing alone, is gen- 
erally construed as importing an executory contract as distin- 
guished from an executed contract. In a Xorth Carolina case, the 
court passed upon a marketing contract which read " The association 
agrees to buy and the grower agrees to sell and deliver ; ' the tobacco 
in question, and the court held that this was a contract to sell rather 
than a contract of sale. 8 
Assuming that a marketing contract is a contract of sale and one 
under which the title passes prior to the time that the products are 
delivered to the association, does the association concerned receive 
such a title to the products that any dealer or other person "buying" 
the products after the making of the marketing contract does not 
get title to them ? Or if the products are seized by a creditor of the 
producer, or if a person takes a chattel mortgage on them after the 
making of the marketing contract, are the rights of the association 
to the products superior to their rights in or to them? In a majority 
of the States an association concerned in a situation like any of those 
described would apparently have title to the products so" that the 
association could recover damages (or the products) from any dealer 
who attempted to purchase them or from any person who attempted 
to attach or seize the products as the products of the producer or from 
5 The Elgee Cotton Cases, 89 U. S. 180 ; Filiatreau v. United States, 14 F. (2d) 659. 
6 Sun-Maid Raisin Growers of California v. Jones, Cal. App. . 274 P 557 ■ 
Texas Hay Ass'n v. Angleton State Bank (Tex. Com. App.), 291 S. W. 846. reversing 
decision in 2S5 S. W. 941 ; Beardsley v. Beardsley. 138 IT. S. 262 ; 24 R. C L. sec. 312. 
7 See sec. 17 of Bingham Cooperative Marketing Act of Ky. on p. 123 of appendix. 
_ 8 Tobacco Growers' Co-op. Ass'n v. L. Harvey & Son Co., 189 N. C. 494, 127 S. E. 545, 
47 A. Lt. R. 928. 
