some principles already considered. In the first place, it is the general rule, as has been seen,' that, in the absence of anything to show a contrary intention, the goods are to be delivered. at the place where they are at the time of the sale. Prima facie then in case 3, and under some forms of case 2, the goods are to be delivered where they are at the time of the sale, and if they need transportation the buyer must provide it. If, in addition to the sale, there is a concurrent agreement that the seller shall deliver, at a particular place or time or manner, the title passes, and the seller in making the delivery must act as the agent or bailee of the buyer, and if he fails to deliver, or delivers negligently, his liability must be based not upon his failure to sell but upon his neglect or failure to deliver, and will be governed by the same principles which would govern such neglect or failure on the part of any bailee or agent. This is case 4. Again, as in case 5, it may be the express condition that there shall be a sale only upon condition that the seller does deliver the goods in a particular time or manner or at a specified place. Here the title will not pass until this condition is complied with. If not complied with, the buyer may have an action for damages against the seller, but it will be as for the breach of an executory agreement. Finally, upon the principle that stipulations respecting time, place, etc., in the contracts of merchants are in the nature of conditions precedent, it may be found in certain cases that what in form is case 4 is really case 5 in legal effect. & 1178. agreement. Construction of Is matter of agreement of specific goods That agreement goods to the buyer in the case of the sale rests, therefore, upon his agreement so to do. may, of course, be express, or it may be implied from the situation or nature of the goods, the previous dealings of the par 1 See ante, § 1124. 2 This is well illustrated in Terry v. Wheeler, 25 N. Y. 520; Rail v. Lit tle Falls Lumber Co., 47 Minn. 422, 3 Taylor v. Cole, 111 Mass. 363. ties, the custom in like cases, or the other circumstances surrounding the transaction. § 1179.. It must be kept in mind, also, that the parties are, in general, at liberty to make whatever contract pleases them respecting the time or place or risks of delivery. As was pointed out by Lord Blackburn in a case1 already referred to,1 if the language of the parties indicates that they intend that the goods, when delivered to the carrier, shall be at the buyer's risk, that intention is effectual; if it shows that they intend that the seller shall not merely deliver the goods to the carrier, but shall also undertake that they shall actually be delivered at their destination, that intention also is effectual; and if it shows, still further, an intention that, when the goods are delivered to the carrier, the seller shall have performed his undertaking, but still that the goods are not to be paid for unless and until they arrive at their destination, this intention will be given effect, and, though the title has passed and the goods have been delivered, the price will not be payable unless they actually arrive. § 1180.. And even though an order for goods is given. under circumstances which would otherwise indicate that delivery to a carrier would be a performance, it may still be shown to have been the real contract of the parties that the seller should deliver the goods at the buyer's place of business.* So, though the contract in terms stipulates that the goods are to be delivered by the seller at a certain place, it may appear to be the true construction of the contract that this meant simply that the seller should pay the cost of transportation, and that therefore a delivery to the carrier and the payment of the freight constituted a performance of the contract.* 1 Calcutta Co. v. De Mattos, 32 L. J. Q. B. 322. 2 See ante, § 742. 4 Such was the case of Tregelles v. Sewell, 7 Hurl. & Nor. 574. So also Neimeyer Lumber Co. v. Burlington, 3 McLaughlin v. Marston, 78 Wis. etc. R. Co. (1898), 54 Neb. 321, 74 N. 670, 47 N. W. R. 1058. W. R. 670, 40 L. R. A. 534. In every case, therefore, the question is, What did the parties intend and agree? § 1181. Undertaking of seller to "send," "ship" or "forward" goods, how satisfied. It is obvious that the agreement of the seller or the direction of the buyer to send. the goods to the latter may have a variety of meanings, including even an actual transportation and delivery by the seller to the buyer at the point of destination as a condition precedent to the passing of the title. In the ordinary case, however, where specific goods are sold at one place which the buyer desires to have delivered at another, and the seller expressly or impliedly agrees, or the buyer directs him, to send them to that place, without specifying the means or method, this agreement or direction is satisfied when the seller has delivered the goods to a common carrier consigned to the buyer at the place specified.' The same construction must also be given to an agreement or a direction to ship or forward the goods. A fortiori will these 1 See ante, § 1178; Dawes v. Peck, 8 T. R. 330; Waite v. Baker, 2 Ex. 1; Fragano v. Long, 4 Barn. & Cr. 219; Dunlop v. Lambert, 6 Cl. & Fin. 600; Johnson v. Dodgson, 2 Mees. & Wels. 653; Norman v. Phillips, 14 id. 277; Meredith v. Meigh, 2 El. & Bl. 364; Cusack v. Robinson, 1 Best & S. 299; Hart v. Bush, El., Bl. & El. 494; Smith v. Hudson, 34 L. J. Q. B. 145; Dutton v. Solomonson (1803), 3 Bos. & Pul. 582; Ex parte Pearson (1868), L. R. 3 Ch. App. 442; Taylor v. Victoria Co-operative Store Co. (1894), 26 Nova Sco. 223; Stafford v. Walter, 67 Ill. 83; Pike v. Baker (1870), 53 Ill. 163; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Krulder v. Elison (1871), 47 N. Y. 36; Sarbecker v. State, 65 Wis. 171, 26 N. W. R. 541; Kelsea v. Ramsey Mfg. Co., 55 N. J. L. 320, 22 L. R. A. 415, 26 Atl. R. 907; Colcord v. Dry fus, 1 Okla. 228, 32 Pac. R. 329; West v. Humphrey, 21 Nev. 80, 25 Pac. R. 446; Kessler v. Smith, 42 Minn. 494, 44 N. W. R. 794; Osborne v. Van Atten, 3 Wash. Ter. 53, 13 Pac. R. 242; Hope Lumber Co. v. Foster Hardware Co., 53 Ark. 196, 13 S. W. R. 731; Rechten v. McGary, 117 Ind. 132, 19 N. E. R. 731; Falvey v. Richmond, 87 Ga. 99, 13 S. E. R. 261; Mann v. Glauber, 96 Ga. 795, 22 S. E. R. 405; Bacharach v. Chester Frt. Line, 133 Pa. St. 414, 19 Atl. R. 409; Perlman v. Sartorious, 162 Pa. St. 320, 42 Am. St. R. 834, 29 Atl. R. 852; The Mary and Susan (1816), 1 Wheat. (U. S.) 25; Price v. Boston, etc. R. Co. (1869), 101 Mass. 542; McKee v. Bainter (1897), 52 Neb. 604, 72 N. W. R. 1044. 2 Phoenix Lock Co. v. Hardware Co. (1891), 9 Houst. (Del.) 232, 32 Atl. R. 79. conclusions follow if the buyer directs that the goods be sent or shipped by a particular carrier.1 § 1182. Selection of the carrier.- In these cases the carrier is to be deemed the bailee or agent of the buyer, and the seller in selecting the carrier, where none is named, acts also as the buyer's agent. In making the selection of the carrier, in the latter case, the seller must be governed by the circumstances of the case. If there be but one carrier, delivery to him will be deemed to have been intended; if there be more than one, then the seller will have performed his duty if he sends the goods in the usual and customary way. But if the carrier be designated by the buyer, a delivery to another than the one specified will not be a performance of the seller's undertaking. He should deliver to the one named, or, if that is impossible, notify the buyer and await further instructions. § 1183. Delivery to the carrier must be made with due care. In order that the delivery to the carrier shall be deemed a delivery to the buyer so as to charge him with the responsibility of the goods and relieve the seller, it is further 1 State v. Peters (1897), 91 Me. 31, 39 Atl. R. 342; Mann v. Glauber (1895), 96 Ga. 795, 22 S. E. R. 405; Hobart v. Littlefield, 13 R. L. 341; Pennsylvania Co. v. Holderman, 69 Ind. 18; Magruder v. Gage, 33 Md. 344, 3 Am. R. 177; Whiting v. Farrand, 1 Conn. 60; Janney v. Sleeper, 30 Minn. 473, 16 N. W. R. 365. 2" If the carrier is not specified, the vendor, acting in this respect under the order of the purchaser to forward the goods, is his agent in the selection of the carrier, and in either case [whether the buyer names the carrier or not] the carrier is, in contemplation of law, chosen by the purchaser." Kelsea v. Ramsey Mfg. Co., 55 N. J. L. 320, 26 Atl. R. 907, 22 L. R. A. 415. 3 Robinson v. Pogue (1888), 86 Ala. 257, 5 S. R. 685; Comstock v. Affoelter (1872), 50 Mo. 411; Putnam v. Tillotson (1847), 13 Met. (Mass.) 517; Merchant v. Chapman (1862), 4 Allen (Mass.), 362. 4 Where the undertaking to ship by a particular route or carrier is plain and unambiguous, it must be complied with, and evidence of an invariable custom to transship, or that there was no direct route or carrier from the place of shipment to the place of delivery, is inadmissible. Iasigi v. Rosenstein, 65 Hun (N. Y.), 591. So also Hills v. Lynch (1864), 3 Robt. (N. Y.) 42: Wheelhouse v. Parr (1886), 141 Mass. 593, 6 N. E. R. 787. necessary that the delivery to the carrier by the seller shall' be made in proper form and with due care and diligence. It must be such a delivery as will charge the carrier, and give to the buyer the right to claim indemnity against the carrier in case the goods are lost.1 If the buyer directs, or the course of dealing between the parties requires, that the goods when shipped shall be insured, the seller must also see that the insurance is effected.2 1 Ward v. Taylor (1870), 56 Ill. 494; Davis v. Koenig (1895), 165 Pa. St. 347. Where the seller of a safe, who had agreed to put it safely on board the cars, left it in such condition that it was injured by abrasion of bolts in the side of the car, the seller was held liable for the injury. Diebold Safe Co. v. Holt (1896), 4 Okl. 479, 46 Pac. R. 512. Where the goods, which were chairs, were taken to the wharf and left there without getting a receipt or calling any one's attention to them, Lord Ellenborough, in Buckman v. Levi, 3 Camp. 414, said: "A delivery of goods to a carrier or wharfinger with due care and diligence is sufficient to charge the purchaser; but he has a right to require that in making this delivery due care and diligence shall be exercised by the seller. Before the defendant can be charged in the present in stance, he must be put into a situation to resort to the wharfinger for his indemnity. But no receipt was taken for the chairs; they were not booked; and no person belonging to the wharf is fixed with a privity of their being left there. The plaintiff was bound to procure them to be booked, or to deliver them to the wharfinger himself, or some person who can be proved to be his agent for the purpose of receiving them. The person upon the wharf when the chairs were left might be a thief, watching for an opportunity to purloin them; the defendant therefore is not furnished with a remedy over against the wharfinger, and is not himself liable as purchaser of the goods." And in Clarke v. Hutchings, 14 East, 475, where the carrier had a well-known regulation not to be answerable for goods above a certain value unless entered and paid for as such, and the seller delivered goods of greater value without so entering them, the same judge said: "The plaintiff 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 authority 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 in such a course of conveyance as that in case of a loss the defendant might have his indemnity against the carrier." Cothay v. Tute, 3 Camp. 129, is distinguishable. 2 Ante. § 749; New York Tartar Co. v. French, 154 Pa. St. 273, 26 Atl. R. 425. See also Bartlett v. Jewett, 98 Ind. 206. |