§ 957. Delivery to a carrier on behalf of the buyer. The Sales Act provides 13 in regard to delivery by the seller to a carrier: (1) Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer,11 except in the cases provided for in section 19, Rule 5 15 or unless a contrary intent appears.15 (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. 16 (3) Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit." 17 13 Sec. 46. 14 Alderman Bros. Co. v. Westinghouse &c. Co., 92 Conn. 419, 103 Atl. 267; Schanz v. Bramwell (N. Y. Misc.), 143 N. Y. S. 1057; Hauptman v. Miller, 94 N. Y. Misc. 266, 157 N. Y. S. 1104; Woodland Lumber & Mfg. Co. v. Barnett, 185 N. Y. App. D. 572, 173 N. Y. S. 4; State v. Bayer, 93 Ohio, 72, 112 N. E. 197. 15 Rule 5. "If the contract to sell requires the seller 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, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon." 15 Delivery to a carrier with directions to deliver on the seller's order is not a delivery to the buyer. Lyman v. Woldert Grocery Co., 133 Ill. App. 362. 16 Miller v. Harvey, 221 N. Y. 54, 116 N. E. 781; Southern Nursery Co. v. Winfield Nursery Co., 89 Kan. 522, 132 Pac. 149. 17 See Williston, Sales, § 469; Wimble v. Rosenberg, [1913] 1 K. B. 279, 3 K. B. 743; Law & Bonar Ltd., v. British Am. Tobacco Co., [1916] 2 K. B. 605. § 958. Delivery of wrong quantity. The Sales Act provides 18 as to error in quantity: (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, 19 but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. 20 If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full,21 the buyer shall not be liable for more than the fair value to him of the goods so received. (2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. (3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. (4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties." 22 § 959. Right to examine the goods. The Sales Act provides 23 as to the buyer's right of examination: "(1) Where goods are delivered to the buyer, which he 18 Sec. 44. 19 Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619. 20 Doxey v. Coates, 181 N. Y. App. D. 207, 168 N. Y. S. 76; Bloom v. Arthur Walker & Co., Inc., (App. Term, Supr. Ct.) 175 N. Y. S. 150. 21 Kirshman v. Crawford-Plummer Co., 165 N. Y. App. D. 259, 150 N. Y. S. 886. 22 As to the right of the buyer to reject an offer of a wrong quantity, see Cunliff v. Harrison, 6 Ex. 903; Reuter v. Sala, 4 C. P. D. 239; Norrington ɛ. Wright, 115 U. S. 188, 205, 6 Sup. Ct. 12, 29 L. Ed. 366; Rock Glen Salt Co. v. Segal, 229 Mass. 115, 118 N. E. 239; Downer v. Thompson, 6 Hill, 208; List v. Chase, 80 Ohio, 42, 88 N. E. 120; Williston, Sales, §§ 460–463. Cf. Shipton v. Weil, [1912] 1 K. B. 574; Cox v. Early, (Tex. Civ. App.) 143 S. W. 345. See also supra, § 703. 23 Sec. 47. has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.24 66 (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.25 (3) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words 'collect on delivery,' or otherwise 26 the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination." The buyer's right may be excluded by the terms of the contract or may be lost subsequently by agreement or waiver. 27 And a contract to sell C. O. D.28 or for cash against documents of title; 29 or in any other terms which indicate that payment is to precede delivery,30 excludes the right to inspect before 24 Bridgeport Hardware Mfg. Corp. v. Bouniol, 89 Conn. 254, 93 Atl. 674; Agri Mfg. Co. v. Atlantic Fertilizer Co., 129 Md. 42, 78 Atl. 365, Ann. Cas. 1918 D. 396; Gerli v. Mistletoe Silk Mills, 80 N. J. 128, 76 Atl. 335; Greeff &c. Mfg. Co. v. Scourene Mfg. Co., 182 N. Y. App. D. 311, 169 N. Y. S. 550; Fort Wayne Printing Co. v. Hurley Reilly Co., 163 Wis. 179, 157 N. W. 773. 25 This is the rule of the common law. The right operates both as an obligation of the seller and a condition qualifying either the seller's obligation to take title, or his obligation to pay, or both. Lorymer v. Smith, 1 B. & C. 1; Deutsch v. Dunham, 72 Ark. 141, 78 S. W. 767; Charles v. Carter, 96 Tenn. 607, 36 S. W. 396; Garvan v. New York Central R. Co., 210 Mass. See 275, 96 N. E. 717; Unadilla Silo Co. v. Hull, 90 Vt. 134, 96 Atl. 535. Williston, Sales, §§ 471-480. 26 As where goods are shipped under a bill of lading with draft attached. Imperial Products Co. v. Capitol Chemical Co., 103 N. Y. Misc. 493, 170 N. Y. S. 397. 27 See Urbansky v. Kutinsky, 86 Conn. 22, 84 Atl. 317. 28 Wiltse v. Barnes, 46 Ia. 210. 29 E. Clemens Horst Co. v. Biddell, [1912] A. C. 18; Roach v. Lane, 226 Mass. 598, 116 N. E. 470; Plumb v. J. W. Hallauer & Sons Co., 145 N. Y. App. Div. 20, 130 N. Y. S. 147; Dudley v. Chicago, etc., R. Co., 58 W. Va. 604, 52 S. E. 718, 3 L. R. A. (N. S.) 1135, 112 Am. St. Rep. 1027. 30 Lawder & Sons Co. v. Mackie Grocery Co., 97 Md. 1, 54 Atl. 634. payment, but if after payment the goods are found inferior, the buyer may refuse them and reclaim the price.31 Unless authorized expressly by the contract or impliedly by custom a seller is not justified in shipping goods to the buyer in such a way as to exclude the right of inspection, and if he does so, the buyer may refuse to proceed with the contract.32 § 960. Buyer is not bound to return goods wrongly delivered. The Sales Act provides 33 that unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he notifies the seller that he refuses to accept them." 34 If the seller refuses or neglects to remove the goods the buyer may resell them.35 The contract may, however, impose upon the seller the duty of returning them.36 § 961. Risk of loss under the Sales Act. The Sales Act 37 provides: "Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer 38 but when the property therein Cf. Murphy v. Sagola Lumber Co., 125 31 Delaware, etc., R. Co. v. United States, 231 U. S. 363, 58 L. Ed. 269, 34 Sup. Ct. Rep. 65; Hudson v. Germain Fruit Co., 95 Ala. 621, 10 So. 920; Corey's Wholesale Fruit Co. v. Fuller, 62 Fla. 146, 56 So. 800, 801; Pittsburgh, etc., R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295, 298. 32 Erwin v. Harris, 87 Ga. 333, 13 S. E. 513; Imperial Products Co. v. Capitol Chemical Co., 187 N. Y. App. D. 599, 176 N.. S. 49. 32 L. R. A. (N. S.) 212; Ash v. International Harvester Co., 101 Miss. 542, 58 So. 529; Strauss v. Furniture Co., 76 Miss. 343, 24 So. 703; Rheinstrom v. Steiner, 69 Ohio St. 452, 69 N. E. 745, 100 Am. St. Rep. 699; Unadilla Silo Co. v. Hull, 90 Vt. 134, 96 Atl. 535. 35 Rubin v. Sturtevant, 80 Fed. 930, 51 U. S. App. 286, 26 C. C. A. 259; Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891; Descalzi Fruit Co. v. Sweet, 30 R. I. 320, 75 Atl. 308, 27 L. R. A. (N. S.) 932, 136 Am. St. Rep. 961. Cf. White v. Schweitzer, 221 N. Y. 461, 117 N. E. 941. 36 Berlin Machine Works v. Midland Coal Co., 45 Mont. 390, 123 Pac. 396. 37 Sec. 22. 38 Agri Mfg. Co. v. Atlantic Mfg. Co., 129 Md. 42, 98 Atl. 365, Am. Cas. 1918 D. 396. is transferred to the buyer the goods are at the buyer's risk, 39 whether delivery has been made or not, except that— (a) Where delivery of the 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.40 (b) Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault." 41 § 962. Risk generally attends title. In the English and American law of sales of goods there is singularly little discussion in regard to the risk before transfer of the property. It was early assumed without discussion that the maxim res perit domino was of universal application,12 and this assumption has sufficed to fix the law.43 In the 39 Schanz v. Bramwell, 143 N. Y. S. 1057. 40 Applied to conditional sales in Collerd v. Tully, 78 N. J. Eq. 557, 80 Atl. 491; O'Neil-Adams Co. v. Eklund, 89 Conn. 232, 93 Atl. 524; Dinsmore v. Maag-Wahmann Co., 122 Md. 177, 89 Atl. 399. Applied to goods shipped in accordance with contract where the seller named himself as consignee in the bill of lading in order to retain security, in Alderman Bros. Co. v. Westinghouse Air Brake Co., 92 Conn. 419, 103 Atl. 267; Kinney v. Horwitz, (Conn. 1919), 105 Atl. 438. 41 Subsection (b) was held applicable only to cases of temporary default in Rylance v. Walker, 129 Md. 475, 99 Atl. 597. In such a case the subsection was applied in Baltimore & Ohio R. Co. v. Carter, 133 Md. 551, 105 Atl. 760. Section 22 of the Sales Act was copied from section 20 of the English Sale of Goods Act. Subsection (a), however, is not in the English act. The reasons for its insertion will appear from the discussion in the following sections. The English act has an additional paragraph not copied in the American act because deemed unnecessary: "Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party." 42 It is curious that this maxim of the Roman Law should be quoted in our law chiefly in a class of cases to which it did not apply in the Roman Law. 43 In Noy's Maxims, c. XLII, it is said: "If I sell my horse for money, I may keep him until I am paid, but I cannot have an action of debt until he be delivered, yet the property of the horse is by the bargain in the bargainee or buyer; . . . and if the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer." It will be ob |