issue would depend upon whether the sale had been completed before the loss occurred; that where parties have bargained, the one that he will sell and the other that he will buy, the duty rests upon the seller to deliver the article in pursuance of the agreement he has made, and that to complete the sale there must be an acceptance by the purchaser of the article which he purchased, in accordance with that agreement; that when that has been done "the sale is completed, and any loss after that time falls upon the man who bought. I mean, any loss which is the result of no wrongful or intentional negligence of the parties."

The court also instructed the jury that, if there was an acceptance by the defendant, then the position of the captain became changed, and his duty as the agent of the plaintiff was at an end; and this question was left to the jury upon the acts and conduct of the defendant's servants before they stopped work that night, with the instruction that if the jury should determine from the testimony "that the defendant or his employés so acted that they recognized that that coal was there at their disposal, under their dominion, within their power, and that they so acted as to show that they were dealing with it as if it were McNeal's, from those acts you may determine that there was an acceptance of the coal, as being the coal which had been bought under that bargain."

The transaction between the parties was an order for a certain quantity of coal, part lump coal and part steam-boat coal, of an approved quality. It was, in effect, a contract of sale by sample. On such a sale of goods, it is a condition implied by law that the buyer shall have a fair opportunity, by examining the goods, to satisfy himself that they are in accordance with the contract. 2 Benj. Sales (Corbin's Ed.) §§ 910, 1025, 1042; Isherwood v. Whitmore, 11 Mees. & W. 347; Startup v. McDonald, 6 Man. & G. 593; Croninger v. Crocker, 62 N. Y. 152. And under a shipment of goods by a carrier the consignee is entitled to inspect and examine the goods, to ascertain whether they correspond with the invoice, and to a reasonable time within which to receive and remove the goods. For that purpose a reasonable time within usual business hours must be allowed, and during that period the liability of the carrier as carrier remains undischarged. Bradstreet v. Heron, Abb. Adm. 209, 214; Manufacturing Co. v. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266; Dibble v. Morgan, 1 Woods, 406, Fed. Cas. No. 3,881; The Tybee, 1 Woods, 358-363, Fed. Cas. No. 14,304; The Iddo Kimball, 8 Ben. 297, Fed. Cas. No. 7,000; 5 Myer, Fed. Dec. "Carriers," §§ 802, 803, 846, 852, 1008; The Eddy, 5 Wall. 481-493, 18 L. Ed. 486; Price v. Powell, 3 N. Y. 322; Dunham v. Railroad Co., 46 Hun (N. Y.) 245; Miller v. Navigation Co., 10 N. Y. 431; Hedges v. Railroad Co., 6 Rob. (N. Y.) 119, reversed in court of appeals, but not on this point, 49 N. Y. 223; Moses v. Railroad Co., 32 N. H. 523, 64 Am. Dec.

381; Graves v. Steam-Boat Co., 38 Conn. 143-152, 9 Am. Rep. 369; Richardson v. Goddard, 23 How. 28-39, 16 L. Ed. 412; Bourne v. Gatliffe, 3 Man. & G. 643-687, 11 Clark & F. 45-70; 3 Lewis, Ann. R. & Corp. R. 54, note to Railroad Co. v. Ludden, (Ala.) reported in 7 South. 471.

The acts done by the defendant's servants before they quit work were of a two-fold character: First. In directing the barge to be laid along-side of the wharf for unloading. The captain made the boat fast to the wharf, and remained in charge during the night. The designation by the defendant of his wharf as the place for unloading was an act in performance of the defendant's duty, as consignee, to provide a place for the discharge of the cargo. Second. In the preparations for unloading. The barge was laid along-side the float about 10 minutes before 6. The buckets were lowered down upon the barge, and possibly a small quantity of coal was unloaded. The hands quit work at 6, and replaced the buckets on the wharf. In these acts there was no evidence of an acceptance of the entire cargo, nor of a discharge of the carrier from his responsibility. Under the rules of law I have stated, the defendant was entitled to a reasonable opportunity to unload the entire cargo for examination to ascertain whether the coal corresponded with his order, and had arrived in good condition. By law he was secured these rights without discharging the liability of the carrier. Even if the goods had been accepted so as to pass title as between vendor and purchaser, the defendant, under the plaintiff's undertaking to deliver them at Burlington, still had a right to a reasonable time to unload them under the plaintiff's contract to transport and deliver the goods.

Judgment: reversed."

5 A. contracted to sell to B. 400 tons of ground tankage "at $2.67% per unit for ammonia per ton of 2,000 pounds c. i. f. your works." The goods were to contain 70 per cent. of available nitrogen, and it was agreed that, if B. should have any goods analyzed, an official sample should be used, and, if the nitrogen should prove to be less than 70 per cent., B. should have the privilege of refusing the goods. A carload containing about 30 tons was shipped in part performance of this contract, and upon arrival was placed in position for unloading. The bill of lading was delivered to B. and three-fourths of the estimated price was paid by B. to A.'s agent in accordance with the contract. Before the contemplated analysis could be made, the carload was destroyed by fire. May B. recover the sum paid for the goods? See Agri Mfg. Co. v. Atlantic Fertilizer Co., 129 Md. 42, 98 Atl. 365, Ann. Cas. 1918D, 390 (1916).

STANDARD CASING CO., Inc., v. CALIFORNIA CASING CO., Inc.

(Court of Appeals of New York, 1922. 233 N. Y. 413, 135 N. E. 834.)

Action by the Standard Casing Company, Inc., against the California Casing Company, Inc. From a judgment of the Appellate Division (197 App. Div. 187, 188 N. Y. Supp. 358), affirming a judgment of the Trial Term entered on a directed verdict for plaintiff, defendant appeals. Reversed, and new trial granted.

CARDOZO, J. The plaintiff, the buyer, sues the defendant, the seller, for the breach of a contract, made in San Francisco, Cal., upon terms which are stated as follows in the seller's letter of confirmation:

"San Francisco, December 18, 1917.

"The Standard Casing Co., Inc., 206 East 56th Street, New York City, N. Y.: We have this day sold you the following: Twenty (20) casks of salted pig guts, each about three thousand bundles.

"Shipment: January, February, and not later than the fifteenth of March, 1918.

"Quality: Salted pig guts, as previous shipment.

"Price: Eighteen cents United States Gold coin per bundle f. o. b. San Francisco.

"Packing: Bundles of not more than three pieces measuring in all thirteen meters, no piece to be shorter than one meter. Width 60 per cent. from 25/29 mm. and 40 per cent. from 29/31 mm.

"Payment: Sight draft, bill of lading attached with the privilege of examining the goods on arrival.

"California Casing Company, Inc.,

"Per B. Neustadter, President.”

None of the shipments were made, and the seller's breach is conceded. The only question before us is the extent of the recovery. The plaintiff, to prove its damages, gave evidence of the market value in New York. The defendant offered evidence, which the court would not receive, of the market value in San Francisco. Judgment has been rendered on the theory that performance by the seller involved delivery to the buyer at the point of destination, and not merely. delivery to the carrier at the point of shipment. We read the contract differently.

The general rule is that, upon a sale "f. o. b. the point of shipment," title passes from the seller at the moment of delivery to the carrier, and the subject of the sale is thereafter at the buyer's risk. Williston, Sales, § 280, p. 409; U.. S. v. R. P. Andrews & Co., 207 U. S. 229, 241, 28 Sup. Ct. 100, 52 L. Ed. 185; Detroit Southern R. Co. v. Malcomson, 144 Mich. 172, 107 N. W. 915, 115 Am. St. Rep. 390. The operation of the rule is, of course, subordinate to intention. We

find nothing in this contract by which an inconsistent intention is adequately revealed. The plaintiff sees in two provisions the tokens. of a purpose that arrival at the point of destination shall be a condition of performance. One is the provision that, after arrival at New York, the buyer may inspect. The other is that, subject to such inspection, payment shall be made on presentation of a draft with bill of lading attached. We think that each is inconclusive.

The reservation by a consignee of the privilege of inspection does not place the goods while in transit at the risk of the consignor. Pierson v. Crooks, 115 N. Y. 539, 546, 548, 22 N. E. 349, 12 Am. St. Rep. 831; Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393; Delaware, L. & W. R. R. Co. v. United States, 231 U. S. 363, 371, 34 Sup. Ct. 65, 58 L. Ed. 269. The privilege is often implied. Williston, Sales, §§ 473, 474. Its expression in this instance qualifies any inference of acceptance resulting from the requirement of payment upon presentation of the draft. Pers. Prop. Law (Cons. Laws, c. 41), § 128, subd. 3. Whether expressed or implied, it does not change the incidence of the risk. Title passes upon shipment, though subject to the right of rescission upon the discovery of defects. Delaware, L. & W. R. R. Co. v. United States, supra. 6

The incidence of the risk is unaffected also by the right, retained by the defendant, to determine whether the bill of lading should run to consignor or to consignee. It is true that "where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods." Personal Property Law, § 101, subd. 2.

The reservation, however, is not absolute. "If, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract." Personal Property Law, § 101, subd. 2.

A property thus reserved as security only does not relieve the buyer from subjection to the perils of the transit. "Where delivery of goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract, and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery." Personal Property Law, § 103, subd. a;7

6 B. ordered goods from A., selected from samples shown at B.'s store, and directed that they be shipped by Mahoney's Express, B. to pay the express charges. The goods were shipped, and while in the possession of the expressman were destroyed by fire. May A. recover the price? Levy v. Radkay, 233 Mass. 29, 123 N. E. 97 (1919). Compare Giffen v. Selma Fruit Co., 5 Cal. App. 50, 89 Pac. 855 (1907).

7 This is section 22 (a) of the Sales Act.

Alderman Bros. Co. v. Westinghouse Air Brake Co., 92 Conn. 419, 421, 103 Atl. 267; Kinney v. Horwitz, 93 Conn 211, 105 Atl. 438. We assume in favor of the plaintiff that the law of California, the place of the making of the contract, controls the obligation of the seller in respect of shipment and delivery. We are not advised that the Uniform Sales Law has been adopted in that state. We think, however, that the statute in the provisions above quoted is declaratory of the rule at common law. There was, indeed, more or less of uncertainty in the common-law decisions, for general statements that there was reservation of the property, if the bill of lading was made out to the order of the consignor, were not always coupled with the qualification that the property, if it would otherwise be divested, might be deemed to be retained as security, and nothing more. Williston, Sales, § 284, supplemented by the same author's review of the authorities in 34 Harvard Law Review, 751. There were cases, none the less, where the qualification was not ignored. Browne v. Hare, 4 Hurl. & N. 822, 823; Inglis v. Stock, 10 App. Cas. 263; Joyce v. Swann, 17 C. B. (N. S.) 84; Dows v. Nat. Exch. Bk. of Milwaukee, 91 U. S. 618, 634, 23 L. Ed. 214; Higgins v. Murray, 73 N. Y. 252, 255; Farmers' & Mechanics' Nat. Bk. of Buffalo v. Logan, 74 N. Y. 568, 579, 581, 582; Williston, supra; Benjamin on Sales (5th Ed.) p. 386. The framers of the statute extracted from uncertain judgments the rule which they found to be in principle the soundest, with the purpose, here at least, to codify, but not to change. The record does. not inform us that a different rule has been established by the courts of California. In the absence of such a showing, we accept the codification as a statement of the rule at common law. Doubts, if there are any, may well be resolved in favor of the ruling that will make for the larger uniformity.

We hold, then, that the risk of transit was the buyer's, whether the bill of lading was made out to him or to the seller. Inglis v. Stock, 10 App. Cas. 263; Alderman Bros. Co. v. Westinghouse Air Brake Co., supra; Higgins v. Murray, supra. If that is so, the seller's performance would be complete upon the beginning of the transit. There was no undertaking that the goods would reach their destination. Calcutta and Burmah Steam Navigation (Limited) Co. v. De Mattos, 32 Law J. N. S. 322. The undertaking was merely that they would be delivered to the carrier. The place where that was to be done, as it would be the place of final performance by the seller if the contract had been kept, must be the place also of default when performance was refused. Market values in California, and not market values in New York, must therefore be the measure of the value of the bargain. Seaver v. Lindsay Light Co., 233 N. Y. 273, 135 N. E. 329; Personal Property Law, § 148. No doubt, in any case of delivery to a carrier, the expectation of the buyer is that the goods will reach their destination. That is not enough to trans