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a free wharf,1 or in a place to which all persons have free access,2 neither attornment by the owner of the premises nor notice to him is necessary to a complete delivery of the goods. In such cases the seller fully performs his obligation to deliver the property by doing any act, which puts the buyer in the same position of control which he has been holding. Accordingly, if the seller points out the property to the buyer or tells him to take possession of it, and the buyer marks it with his initials or does any similar act disclosing his intent to treat the property as in his possession, delivery is complete, both as respects the creditors of the seller and the parties to the sale.

(B) Transfer of Possession by Delivery to a Carrier.

275. We have seen that the place of giving possession, in the absence of an agreement upon this point, is the seller's place of business or abode, or the place where the goods are at the time of sale; and that the seller is not bound to despatch the goods. But he may, and often does, agree to send them to the buyer. In such a case, his duty of giving possession is performed when he has delivered the goods to a suitable carrier, in proper condition for transportation, correctly addressed, and has exercised due care and diligence in providing the buyer with a remedy against the carrier.3

276. Implied Authority to deliver to a Carrier. As early as 1803, Lord Alvanley declared it "to be a proposition as well settled as any in the law that if a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier it operates as a delivery to the purchaser."4 Delivery to the carrier does not have this effect, however, unless it is made with the buyer's assent, although that "may be implied from the course of

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1 Cooper v. Bill, 3 H. & C. 722; 34 L. J. Ex. 161 (1865).

2 Snow v. Terrett, 167 Mass. 457; 45 N. E. 764 (1897); Burdick's Cases on Sales, 476.

3 Kelsea v. Ramsey Co., 55 N. J. L. 320; 26 At. 907 (1893); Burdick's Cases on Sales, 209.

Dutton v. Solomonson, 3 B. & P. 582, 584 (1803); cf. Comstock v. Affoelter, 50 Mo. 411 (1872).

Loyd v. Wight, 20 Ga. 574 (1856); Bray Clothing Co. v. McKinney,

trade." If the buyer designates a particular carrier, the seller has no authority to send by any other. If he does despatch the goods by another, such carrier is his agent, and not the buyer's, "and he cannot be allowed to assert that he has made a complete delivery."

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Nor is the delivery complete, though the goods are put into the possession of a carrier by the seller, if the contract requires him "to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer or to a particular place." 3

277. Goods must be prepared for Transportation. — The seller's agreement to despatch the goods undoubtedly binds him to exercise reasonable care in preparing them for transportation. "If a vendor is to ship a set of dishes to his vendee, it requires no argument to establish that his duty would not be performed by putting them in a box without any packing to prevent breakage, and then deliver them to a carrier." Nor does the seller of fruit make a good delivery of it to the buyer, by shipping it in a box car unprotected during freezing weather, when it might have been made perfectly safe by proper packing and the use of a proper car.4

278. Goods must be correctly addressed. In order that delivery to the carrier may operate as delivery to the buyer, the 90 Ark. 161; 118 S. W. 406 (1909); Heert v. Ridemaur-Raymond Co., 48 Colo. 42, 46; 108 Pac. 968 (1910).

Hague v. Porter, 3 Hill (N. Y.), 141, 144 (1842); Burdick's Cases on Sales, 163.

2 Wheelhouse v. Parr, 141 Mass. 593, 596; 6 N. E. 787 (1886); Burdick's Cases on Sales, 176; cf. Iasigi v. Rosenstein, 141 N. Y. 414; 36 N. E. 509 (1894), where the steamer of shipment was named, but that of arrival was not, and evidence of usage of trans-shipment at Liverpool was held admissible; reversing same case in 65 Hun, 591. To the same effect is Harrison v. Fortlage, 161 U. S. 57, 64; 16 Sup. Ct. 488 (1895). Nor can he excuse his default by showing that the carrier named has no connection with the point of shipment. In that case, he must notify the buyer, and give him a chance to select another carrier. Woodbine Childrens C. Co. v. S. Goldnamer & Son, 134 Ky. 538; 121 S. W. 444 (1909).

3 The Uniform Sales Act, §§ 19, Rule 5 & 46 (1); Green & Sons v. Lineville Drug Co., 167 Ala. 372; 52 So. 433 (1910); White v. Schweitzer, 147 App. Div. 544; 132 N. Y. Supp. 644 (1911).

4 Wilson v. Western Fruit Co., 11 Ind. App. 89, 93; 38 N. E. 827 (1894); Burdick's Cases on Sales, 698.

goods must be correctly addressed by the seller.1 If he gives insufficient or inaccurate directions to the carrier, and in consequence thereof 3 the goods do not reach the buyer, the seller cannot recover for goods sold and delivered; and if the buyer has paid for them, he can recover the price.

279. Care in providing the Buyer a Remedy against the Carrier. The degree of care and diligence required of the seller in providing the buyer with a remedy against the carrier is well illustrated by a leading English case which has been cited by our courts frequently. By a well-known rule of the carrier, its liability for packages was limited to £5, unless they were entered and paid for as of greater value. Yet the seller shipped goods worth £51 without making special entry of them. They were lost, and the seller, suing for goods sold and delivered, was defeated. "The plaintiff," said Ellenborough, C. J., “cannot be said to have deposited the goods in the usual and ordinary way, for the purpose of forwarding them to the defendant, unless he took the usual and ordinary precaution, which the notoriety of the carriers' general undertaking required, with respect to goods of this value, to insure them a safe conveyance; that is, by making a special entry of them. He had an implied authoriity, and it was his duty to do whatever was necessary to secure the responsibility of the carriers for the safe delivery of the goods, and to put them into such a course of conveyance as that in case of a loss the defendant might have his indemnity against the carriers."

280. Should the Seller afford the Buyer an Opportunity to insure? - The English statute, adopting a rule of the Scotch law, imposes upon the seller, in the absence of an agreement to the contrary, the duty of giving the buyer such notice as may enable him to insure the goods during their sea transit. No 1 Am. Jobbing Assoc. v. Wesson, 92 Ark. 287; 122 S. W. 664 (1909). 2 Finn v. Clark, 10 Allen (92 Mass.), 479 (1865).

Garretson v. Selby, 37 Ia. 529 (1873).

Clarke v. Hutchins, 14 East, 475 (1811); Ward v. Taylor, 56 Ill. 494, 495 (1870); Wilson v. Western Fruit Co., 11 Ind. App. 89, 94; 38 N. E. 827 (1894); Sprinkle v. Brimm, 144 N. C. 401; 57 S. E. 148; 12 L. R. A. N. S. 679, and cases cited in case note (1907); Castelli v. Jereissati, 80 N. J. L. 295, 297; 78 At. 227 (1910). Uniform Sales Act, § 46 (2).

' Brown's Sale of Goods Act (1st ed.), (§ 32 (3)), 156-164. The au

such duty is imposed by English common law. "In the absence of a special contract, the seller of goods is not bound to insure, nor to impart any information upon the subject of insurance." Whether the seller is under a special contract duty to insure or to give such notice of shipment as will enable the buyer to insure, may depend upon the course of dealing between them.2 The Uniform Sales Act imposes the duty of giving notice upon the seller, whether the route involves sea transit or not, if the circumstances are such that "the seller knows or ought to know that it is usual to insure." 3

281. Delivery to a Warehouseman. - "The delivery of goods by the seller to a warehouseman, pursuant to authority from the buyer, is a delivery to the buyer."

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281 (a). Delivery f. o. b. — A contract, calling for the delivery of the goods f. o. b., imposes upon the buyer the duty of providing, or of naming the means of transportation, in the absence of any special agreement on the subject.5

(c) Change of Location without Transfer of Possession. 282. The location of goods may be changed, pursuant to the provisions of a sale contract, while the possession remains in the seller. Accordingly, delivery to a carrier does not transfer possession to the buyer, if the vendor is bound to transport the goods to the vendee. In such a case the carrier holds the property as agent of the vendor, whose obligation to give possession is not performed until that agent makes delivery to the vendee. For delay on the part of the carrier,' or negligence in dealing thor, after reviewing the Scottish authorities, on which this subsection is founded, and noting that under them "the seller's duty was fulfilled if he posted, on the day of the shipment, a notice to the buyer containing the necessary particulars for insurance," adds that the statute seems to impose a heavier duty, and may require "a resort to telegraphic communication." 1 Bartlett v. Jewett, 98 Ind. 206 (1884).

2 N. Y. Tartar Co. v. French, 154 Pa. St. 273; 26 At. 425 (1893). Mass. L. 1908, ch. 237, § 46 (3).

Hunter v. Wright, 12 Allen (94 Mass.), 548 (1866).

5 Graham v. U. S., 188 Fed. 651, 655; 110 C. C. A. 465 (1911); Hocking v. Hamilton, 158 Pa. 107; 27 At. 836 (1893); cases cited in note 62 L. R. A. 797 (1903); Benjamin on Sales (5th Eng. ed.), 682.

6 Uniform Sales Act, §§ 19, Rule 5, and 43 (1).

7 Braddock Glass Co. v. Irwin, 153 Pa. St. 440, 443; 25 At. 490 (1893).

with the goods,' or failure to deliver for any cause not due to the fault of the purchaser,2 the seller is responsible.

In case the delay is due to some extraordinary cause, the seller may avoid liability, as we have seen in a former connection." But such cause must be pleaded and proved. If without his fault, the means of transportation are so limited that he cannot promptly perform all of his obligations, it may be his duty to prorate his shipments among his customers.5

The possession of goods transferred to the buyer, although they are placed on his premises by the seller, if their delivery is made subject to some condition to be fulfilled by the former before he is to exercise control over them, such as taking out of circulation bills outstanding against the seller, or paying in cash or in approved commercial paper on delivery."

(D) A Partial Delivery under an Entire Contract. 283. This does not satisfy the seller's obligation to give possession, unless the purchaser waives full performance, or the

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1 McNeal v. Braun, 53 N. J. L. 617, 627; 23 At. 687 (1891); Burdick's Cases on Sales, 479; Fifth Ave. Lib. Soc. v. Gates, 162 Mich. 667; 127 N. W. 714 (1910).

2 McLaughlin v. Marston, 78 Wis. 670; 47 N. W. 1058 (1891). In this case a quantity of coffee, which plaintiff had agreed to sell and deliver to the defendant at La Crosse, Wis., was attached by a creditor of defendant while in the hands of a carrier in Chicago, to whom plaintiff had delivered it for transportation to La Crosse. The court held that such attachment was no excuse for the non-delivery of the coffee at La Crosse.

Supra, ¶249.

Farmers C. O. & T. Co. v. Ward & Son, 170 Ala. 491; 49 So. 513 (1911).

In re Bellevue Pipe & F. Co., 189 Fed. 169 (1910).

Bishop v. Shillito, 2 B. & Ald. 329 n. (a) (1819); Burdick's Cases on Sales, 125; Smith v. Lynes, 5 N. Y. 41 (1851); Woodbury v. Long, 8 Pick. 542 (1829); Seed v. Lord, 66 Me. 580 (1876); Thompson v. Seek, 84 Kan. 674, 677; 115 N. W. 397 (1911); Pasha v. Bohart, 45 Mont. 76; 122 Pac. 284 (1912); Minnix Co. v. L. C. Smith & Bros. T. Co., 33 App. D. C. 357 (1909); McIver v. Williamson, etc. Co., 19 Okla. 454; 92 Pac. 170; 13 L. R. A. N. s. 696, with note (1907).

7 Kuhlman v. Wood, 81 Ia. 128; 46 N. W. 738 (1890); McNeal v. Braun, 53 N. J. L. 617; 23 At. 687 (1891); Burdick's Cases on Sales,

Brady v. Cassidy, 145 N. Y. 171, 180; 39 N. E. 814 (1895).

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