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the master should hold them on their account; and when that agreement was fulfilled, then, but not otherwise, they would become their property. But before the complete quantity of 530 barrels was shipped, and when a small quantity of oats only were loaded, and before any appropriation of oats to the plaintiffs had taken place, Tempany was induced to enter into a fresh engagement with the defendant, to put on board for him a full cargo for No. 54, by way of satisfaction for the debt due to him; for such is the effect of the delivery order of the 6th, and the agreement with Walker, of the same date, to send the boat-receipt for the cargo of that vessel. Until the oats were appropriated by some new act, both contracts were executory. On the 9th this appropriation took place, by the boat-receipt for the 550 barrels then on board, which was signed by the master, at the request of Tempany; whereby the master was constituted the agent of the defendant to hold those goods; and this was the first act by which these oats were specifically appropriated to any one. The master might have insisted on Tempany's putting on board oats to the amount of the first bill of lading, on account of the plaintiffs, but he did not do so."

Question 324: State the facts and the holding in the above

case.

(b) Delivery to Carrier or Other Bailee by Seller.

Case 325. Belz & Co., Plaintiff, v. McMorrow, Defendant, 173 Massachusetts, 8.

Facts: Belz & Co. was a corporation engaged in business in Philadelphia and sold 10 hogsheads and 2 barrels of ale to McMorrow to be shipped to him at Boston, the buyer to pay the freight. The goods were shipped by Phila. S. S. Co., bills of lading being made out to McMorrow. Suit by Belz & Co.. for the purchase price. Defense that the ale was sold at Boston without a license required by law in Massachusetts. Plaintiff won in the trial court and defendant appeals.

Point Involved: Whether title passed (i. e. sale was made) at Philadelphia or Boston.

HOLMES, J.:

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in view of defendant's pay

ing the freight, it was entirely reasonable for the court to find that the defendant's direction to deliver the ale at his place of business. was meant only to give the address of destination and neither had nor was intended to have any effect on the question when title passed. If this view be taken, then the case is governed by the general rule that a shipment by a seller with an independent common carrier, to the order of a buyer, passes the title as soon as the carrier receives the goods.

Held: that the sale was made in Philadelphia and title passed or sale made at that point.

(Note: The buyer upon the arrival of the goods has an opportunity of inspection, and may for cause reject. This right of inspection, or test, upon arrival, does not preclude the title from passing upon delivery to the carrier if in fact they are in accord with the contract, even though by loss during transit, the buyer never has the opportunity to inspect.)

Question 325: What was the seller suing for in this case? What was the defense? How did the court hold? Why?

Case 326. The Com. Title Insurance and Trust Company, Executor under will of George J. Roesch, deceased, Plaintiff, v. William L. Gregson, Defendant, 303 Illinois Reports, 458.

Facts: The defendant, Gregson, was a provision broker in Chicago and one F. C. Reed was a broker in Philadelphia where Geo. J. Roesch was carrying on business under name of Roesch Packing Company. On May 31, 1916, Gregson ordered from Reed as broker for Roesch 100 barrels family plate-beef at $17. Thereupon Roesch got 100 barrels ready for shipment. Considerable correspondence followed in which Roesch was advised and agreed to ship to Christiania Food Com'n, Christiania, Norway, on a through export bill of lading. Roesch, however, unable to get a through bill, shipped the goods to New York on a domestic bill, expecting to arrange further shipping from that point. The goods were lost

in transit to New York. Suit was brought by Roesch for the purchase price on the theory title passed on shipment and the loss as between seller and buyer, was the buyer's loss. Defense, that Roesch did not follow shipping instructions.

Point Involved: If the shipper defaults in carrying out shipping instructions to which he has agreed, whether risk of loss is on seller while goods in transit.

The sale was of un

MR. JUSTICE DUNN: 66** ascertained goods out of a larger quantity, and there was no appropriation of goods to the contract with the assent of the buyer, under which the property would pass by virtue of section 19, rule 4, of the Uniform Sales act. Roesch made no objection to the shipping instructions, but agreed to take out a through export bill of lading, to pay the freight in advance at the request of the buyer, who stated that if Roesch could not do so the buyer would himself make the arrangement. When Roesch made the shipment he learned that he could not get a through bill of lading at Philadelphia, and therefore he shipped the goods upon a domestic bill and made arrangement for a through bill upon their arrival in New York. Because the goods did not arrive he was unable to procure the through bill and was therefore unable to comply with the shipping instructions.

"In order to relieve a vendor from responsibility for the loss of goods delivered to a carrier for the vendee, the law requires the vendor, unless otherwise authorized by the vendee, to exercise due care and diligence to provide the vendee with a remedy against the carrier. (Stafford & Bro. v. Walter & Skelton, 67 Ill. 83; Miller v. Harvey, 221 N. Y. 54.) This rule of the common law has also been declared by the Uniform Sales act, section 46 of which provides: (2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do,

and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages.' Roesch was 'otherwise authorized by the buyer.' The shipping instructions, which by his acceptance of them and agreement to carry them out had become a part of his contract, required him to procure a through bill of lading. The contract which he made with the railroad company would have been reasonable if his contract with the buyer had not required him to make a different contract, but the buyer having required the delivery to the carrier to be under a specified contract, the seller could not make a delivery which would relieve him from responsibility unless he made such contract. Whether he was bound to accept the shipping instructions or not, he did accept them and agreed to carry them out. Having failed to do so and the goods having been lost he was not relieved from responsibility, but the buyer was authorized to decline to treat the delivery to the carrier as a delivery to himself.

"It is argued that Gregson ratified Roesch's act in shipping on a domestic bill of lading by his letter of June 22, in which he stated that he understood that 'the through bill of lading had to be taken out at New York instead of Philadelphia, and, of course, if this is correct this is the reason for delay.' This letter does not waive the requirement of a through bill of lading but does waive the delay occasioned by the inability to get it at Philadelphia and the necessity of waiting for the arrival of the beef in New York. Gregson had no reason to suppose, at the time he wrote the letter, that the through bill of lading would not be issued in New York. The steamship was not to sail until the 24th, and on that day Gregson telegraphed to Reed inquiring whether the through bill of lading had been issued and exchanged for the local. On June 25 he received a telegram from Reed saying, 'Beef arrived on time, Roesch mailing local bill of lading.' Gregson was not bound to treat the delivery of the beef to the Pennsylvania Railroad Company

as a delivery to him, and the property not having passed to him, he was not bound to pay for it.'

Judgment of trial court affirmed that buyer is not liable to the seller.

Question 326: From what point to what point was shipment made in this case? When would title pass under the rule of the case just preceding this one? Why did it not so pass in this case?

What is the rule as to the necessity of the seller making a contract with the carrier in order to put the risk of loss on the seller?

Case 327. City of Carthage v. Duvall, 202 Illinois Reports, 234.

Facts: The City of Carthage by ordinance made illegal a sale of liquor in less quantities than five gallons, and subjected the offender to a penalty. One Skidmore, a resident of Carthage, ordered a gallon of whiskey from the Dallas Transportation Co., dealing in liquor at Burlington, Iowa. The company sent it by express, Collect on Delivery, and Duvall, the agent of the express company, delivered it in Carthage to Duvall. The city prosecutes Duvall under the ordinance mentioned.

Point Involved: At what point title passes where unascertained goods are purchased to be put on board cars by the seller for delivery to the purchaser. Whether the fact that the shipment is "C. O. D." changes the rule.

MR. JUSTICE HAND delivered the opinion of the Court: The general rule frequently announced by this Court is, that the delivery of personal property by the seller to a common carrier to be conveyed to the purchaser is a delivery to the purchaser, and that the title to the property vests in the purchaser immediately upon its delivery to the carrier. (Pike v. Baker, 53 Ill. 163; Ward v. Taylor, 56 id. 494; Ellis v. Roche, 73 id. 280.) Whether such rule applies where the property is consigned C. O. D. is an open question in this court, but upon principle and authority, where, as here, everything

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