3

N. C. 314; Brock v. O'Donnell, 45 N. J. L. (16 Vroom) 441, 443; Joyce v. Adams, 8 N. Y. 291; Kein v. Tupper, 52 N. Y. 550, 553; Bissell v. Balcom, 39 N. Y. 275; Trigg Co. v. Bucyrus Co., 104 Va. 79; La Vie v. Tooze, 46 Ore. 206; National Bank v. Strickland, 32 Tex. Civ. App. 91.

"As a general rule res perit domino is both the old civil law maxim and a general rule of our law, and, when you can show that the property passed, the risk of loss prima facie is in the person in whom the property is. If, on the other hand, you go beyond that and show that the risk attached to the one person or the other, it is very strong argument for showing that the property was meant to be in him, but the two are not inseparable. It may very well be that the property shall be in one and the risk in the other." Martineau v. Kitching, L. R. 7 Q. B. 436, 455, 41 L. J. Q. B. 227. Quoted with approval in Am. Soda Fountain Co. v. Vaughn, 69 N. J. L. (40 Vroom) 582, 586.

The loss falls on the owner and not on the possessor. Chase v. Union Stone Co., 63 How. Pr. (N. Y.) 336, 11 Daly (N. Y.), 107; Tinsley v. Weidinger, 15 Daly (N. Y.), 534.

3. Clark v. Greeley, 62 N. H. 394, 396; Kime v. Ford, 43 N. Y. 587; Kein v. Tupper, 52 N. Y. 550, 553; Mee v. McNider, 109 N. Y. 500; Gerard v. Prouty, 34 Barb. (N. Y.) 454, 41 N. Y. 619; Olyphant v. Baker, 5 Den. (N. Y.) 379; Dexter v. Norton, 55 Barb. (N. Y.) 272, 47 N. Y. 62; Wadham v. Balfour, 32 Ore. 313; Simmons v. Swift (1826), 5 B. & C. 857; Head v. Tattersall (1871), L. R. 7 Exch. 7, 14; Elphick v. Barnes (1880), 5 C. P. D. 321, 326.

On the sale of goods, the risk follows the title and any loss occurring

after title passes will be on the buyer. Standard Oil Co. v. Van Etten, 107 U. S. 325; Leonard v. Davis, 66 U. S. (1 Black) 476; Tome v. Dubois, 73 U. S. (6 Wall.) 548; Hatch v. Standard Oil Co., 100 U. S. 124.

Risk of loss passes to the vendee with the title in the absence of express stipulation to the contrary. Goddard v. Binney, 115 Mass. 450, 546; Bloxam v. Sanders, 4 B. & C. 941; Tarling v. Baxter, 6 B. & C. 360; Hinde v. Whitehouse, 7 East, 571, 558; Macomber v. Parker, 30 Mass. (13 Pick.) 175, 183; Morse v. Sherman, 106 Mass. 430.

4. Goddard v. Binney, 115 Mass. 450; Rugg v. Minett (1809), 11 East, 211; Fragano v. Long (1825), 4 B. & C. 219; Tarling v. Baxter (1827), 6 B. & C. 360; Sweeting v. Turner (1871), L. R. 7 Q. B. 310.

In a present sale of specific goods to be delivered at a future day, although the goods are lost or destroyed without the fault of the seller before that day, the buyer must pay the price and bear the loss, and the seller is excused from his agreement to deliver on the ground of physical impossibility. Waldron v. Chase, 37 Me. 414; Smith v. Nevitt (1830), 1 Miss. (Walker) 370; Newhall v. Langdon, 39 Ohio St. 87; Taylor v. Caldwell, 3 B. & S. 826; Rugg v. Minett, 11 East, 210; Nickoll v. Ashton (1900), 2 Q. B. 298; 2 Mechem on Sales, § 1413.

A valid tender of goods passes title and places them at the risk of the vendee. Smith v. Loomis, 7 Conn. 110, 116.

The loss happening after the sale and before the acceptance and actual receipt required by the statute of frauds falls on the purchaser. Vincent v. Germond, 11 Johns. (N. Y.)

282; questioned in Townsend v. Hargraves, 118 Mass. 325, 333.

The defendant went into the plaintiff's store to purchase skins. He went into the loft where many skins were lying in bales, examined 30 or 40, and entered into a verbal agreement for 639 at a fixed price per pound; and directed the plaintiff to count, weigh, and set them apart for him. The sale was on credit and the defendant was to send for and take away the skins. The plaintiff counted, weighed, and set apart the required number corresponding in quality and value to those sold. The defendant afterward called at the plaintiff's store and asked if they were ready, received an affirmative reply, and said he would send for them immediately. The plaintiff placed all the skins in the doorway of his store, ready to be taken away by the defendant who later in the day called and secured a bill for them. The skins were not sent for and were destroyed by fire the following night. Held, that there was no acceptance and receipt within the statute of frauds, and that the loss was upon the vendor. Knight v. Mann, 118 Mass. 143. See Gowing v. Knowles, 118 Mass. 232.

Portion of bales of cotton burned before all were delivered. Held, an entire contract and the seller's loss. Kein v. Tupper, 52 N. Y. 550.

Lumber piled on river bank washed away by freshet before all were delivered. Held, contract not entire and the buyer's loss. Burrows V. Whitaker, 71 N. Y. 291.

5. Tome v. DuBois, 73 U. S. (6 Wall.) 546; The Elgee Cotton Cases, 89 U. S. (22 Wall.) 180; Hatch v. Standard Oil Co., 100 U. S. 124; Burke v. Shannon (Ky. 1897). 42

S. W. 223; Willis v. Willis, Adm'r, 36 Ky. (6 Dana) 48; Newcomb v. Cabell, 73 Ky. (10 Bush) 460; Wing v. Clark, 24 Me. 366; Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295; Dugan v. Nichols, 125 Mass. 43; Hinde v. Whitehouse, 7 East, 558; Tarling v. Baxter, 6 B. & O. 360; 1 Mechem on Sales, § 483.

In a sale of standing timber to be cut, hauled and measured by the vendee, it was held, "the wood was subject to the control of the defendants (vendees) and not of the plaintiff (seller). It was in fact in their possession. It is reasonable that it should be at the risk of the party controlling it, and he might at his pleasure delay or facilitate its removal." Upson v. Holmes, 51 Conn. 500, 502.

"At the common law, an agreement for the present sale of specific chattel casts on the buyer the risk of loss." Towne v. Davis, 66 N. H. 396, 397.

"An agreement for the present sale of specific chattels without payment or delivery, casts on the buyer the risk of loss. The law fixes the risk where the title resides." Brock v. O'Donnell, 45 N. J. L. (16 Vroom) 441. 443. Citing Joyce v. Adams, 8 N. Y. 291; Leonard v. Davis, 66 U. S. (1 Black) 476; Bissell v. Balcom, 39 N. Y. 275.

In a present sale, the purchaser takes the risk of loss or destruction of property while in transit. Farmers' Phosphate Co. v. Gill, 69 Md. 537. 1 L. R. A. 767; Mee v. McNider, 109 N. Y. 500; Lord v. Edwards, 148 Mass. 476, 2 L. R. A. 519.

In an executory contract to sell and deliver at a future day specific chattels, the loss of destruction of them without the seller's fault ex

8

cuses him from delivery, but the loss falls upon him. Stone v. Wait, 88 Ala. 599. See sec. 8.

6. Elphick v. Barnes (1880), 5 C. P. D. 321; 1 Mechem on Sales, § 652; Bevington v. Dole, 7 Com. Cas. 112. See sec. 19, note 84.

7. Foley v. Felrath, 98 Ala. 176; Strauss Sadlery Co. v. Kingman, 42 Mo. App. 208; Carter v. Wallace, 32 Hun (N. Y.), 384; 1 Mechem on Sales, 677. See sec. 19, note 47.

8. When the vendor properly delivers the goods to the carrier or other bailee for the buyer, in pursuance of the contract, they are at the buyer's risk. Burton v. Baird, 44 Ark. 556; Sutherland Med. Co., v. Baltimore, 81 Ark. 229; Main v. Jarrett, 83 Ark. 426; Armsby Co. v. Blum, 137 Cal. 552; McCullough v. Armstrong, 118 Ga. 424; Diversey v. Kellogg, 44 Ill. 114; Magruder v. Gage, 33 Md. 344; Lord v. Edwards, 148 Mass. 476 2 L. R. A. 519; Janney v. Sleeper, 30 Minn. 473; Mobile Fruit Co. v. McGuire, 81 Minn. 232; Mee v. McNider, 109 N. Y. 500; Hobart v. Littlefield, 13 R. I. 341; Ranney v. Higby, 4 Wis. 154. See sec. 19, notes 2 and 64.

9. Devine v. Edwards, 101 Ill. 138; Magruder v. Gage, 33 Md. 344; Taylor v. Cole, 111 Mass. 363; Suit v. Woodhall, 113 Mass. 391; Weil v. Golden, 141 Mass. 364; Jones V. Bloomgarden. 143 Mich. 326; Neimeyer Lumber Co. v. Burlington Ry. Co., 54 Neb. 321, 40 L. R. A. 534; McNeal v. Braun, 53 N. J. L. 617;

Ludlow v. Bowne, 1 Johns. (N. Y.) 1; Sneathen v. Grubbs, 88 Pa. St. 147; Braddock Glass Co. v. Irwin, 153 Pa. St. 440; Dannemiller v. Kirkpatrick, 201 Pa. St. 218, 223; Bloyd v. Pollock, 27 W. Va. 75; McLaughlin v. Marston, 78 Wis. 670; Dunlop v. Lambert, 6 Clark & Finn,

600.

The vendor agreed to deliver a cargo of grain. Upon its arrival the vendee inspected and accepted the cargo, and paid for it, and for personal reasons delayed unloading the schooner until next day. In the meantime the schooner sank. Held, that the vendee had assumed the risk and was liable for the purchase price. Lummis v. Millville Mfg. Co., 72 N. J. L. (43 Vroom) 25.

66

The vendee ordered ninety-eight tons of coal delivered at B. It was shipped by barge which arrived at B. and was laid alongside the vendee's wharf just before the usual time for quitting work. During the night the forward part of the barge, which had been separated from the after part, sank in the river and the coal was lost; held, that the loss was upon the vendor. Responsibility for loss in transportation, in carriage by sea, has occasioned considerable discussion in the English courts. The rules on this subject are stated by Lord Cottenham in Dunlop v. Lambert, 6 Cl. & F. 600, 619, 620, 621; and by the Court of Queen's Bench and the Exchequer Chamber in the Calcutta Co. v. DeMattos, 32 L. J. Q. B. 332, 33 id. 214. It is sometimes

10

stated, as a general rule, that delivery to the carrier is delivery to the consignee, and that the goods are to be carried to their destination at his risk. But as examination of the decisions to that effect will show that this doctrine prevails only where the contract of sale, as between the consignor and consignee, was concluded at the place of shipment, and the undertaking to ship was collateral to the contract of sale, as in Tregelles v. Sewell, 7 H. & N. 573. It will also be found that the rule uniformly adopted in the line of decisions, is that the risk of loss in transportation depends upon the nature of the transaction, the terms of the contract, and the intention of the parties. In Dunlop v. Lambert Lord Cottenham said, 'When the party undertaking to consign undertakes to deliver at a particular place, the property until it reaches that place, and is delivered according to the terms of the contract, is at the risk of the consignor.' In Calcutta Co. v. De Mattos, Mr. Justice Blackburn, said, 'There is no rule of law to prevent the parties from making whatsoever bargain they please. If they use words in the contract showing that they intend that the goods shall be shipped by the person who is to supply them, on terms that when shipped they shall be the consignee's property and at his risk, so that the vendor shall be paid for them whether they are delivered at the port of destination or not, this intention is effectual. If the parties intend that the vendor shall not only deliver them to the carrier, but also undertake that they shall actually be delivered at their destination, and express such intention, this is also effectual. In such a case, if the goods perish in the hands of the

carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may be sustained by the purchaser in consequence of the breach of the vendor's contract to deliver at the place of destination.'

Under a contract of this sort delivery of the coal on board the barge was delivery to the master as the plaintiff's (vendor's) bailee or agent to perform for him the act of delivery in execution of his contract. Meanwhile, and until delivery was consummated in such a manner as to be effectual as between vendor and purchaser (vendee), the coal was at the plaintiff's (vendor's) risk." McNeal v. Braun, 53 N. J. L. (24 Vroom) 617, 620, 623.

10. Loomis v. Corbin, 29 Conn. 60, 62; Burton v. Baird, 44 Ark. 556; Diversey v. Kellogg 44 Ill. 114; Magruder v. Gage, 33 Md. 344; Lord v. Edwards, 148 Mass. 476, 2 L. R. A. 519; Mark v. Cooperage Co., 204 Mo. 242; Janney v. Sleeper, 30 Minn. 473; Mobile Fruit Co. v. McGuire (1900), 81 Minn. 232; Mee v. McNider, 109 N. Y. 500; Dannemiller v. Kirkpatrick, 201 Pa. St. 218; Ranney v. Higby, 4 Wis. 154, 5 Wis. 62; 1 Mechem on Sales, § 739.

As to the liability of the seller for not making a reasonable contract with the carrier on behalf of the buyer, see sec. 46.

"Where a contract is made for the sale of goods which are not delivered but are to be sent to the purchaser, if the vendor send them in the mode of conveyance agreed on by the parties or directed by the purchaser; or if no agreement be made, or directions given, in the usual mode; or if the purchaser, being informed of the mode, assents to it; or if there have been sales and conveyances of other

12

goods, and the vendor continues to send them in the same mode; then the goods are at the risk of the purchaser during their passage." Whiting v. Farrand, 1 Conn. 60, 63, 64. See, also, Quimby v. Carr, 89 Mass. (7 Allen) 417; Finn v. Clark, 92 Mass. (10 Allen) 479; 94 Mass. (12 Allen) 522; Downer v. Thompson, 2 Hill (N. Y.), 137; Foster v. Rockwell, 104 Mass. 167; Odell v. B. & M. Ry. Co., 109 Mass. 50; Wigton v. Bowley, 130 Mass. 252.

The usages of trade are competent evidence that, when glass is sold in boxes, the risk of broken glass is on the buyer. Mixer v. Coburn, 52 Mass. (11 Met.) 559, 561.

Where goods are shipped not in accordance with the directions of the vendee, title does not pass, and the loss is upon the vendor. Wheelhouse v. Parr, 141 Mass. 593.

11. Hobart v. Littlefield, 13 R. I. 341. See sec. 4864.

In contracts to sell, where delivery is made conditional upon the property remaining in the vendor, until the payment of the price or performance of other conditions, the risk of loss remains with the vendor in the absence of express stipulations to the contrary.

It has often been held in conditional contracts of sale that the risk of loss by destruction, without the fault of either party, is upon the per

son who retains the title. After the property is destroyed the vendee is not bound by the agreement to pay. Tabbut v. Am. Ins. Co., 185 Mass. 419. Citing Thompson v. Gould, 37 Mass. (20 Pick.) 134; Weed v. Boston & Salem Ice Co., 94 Mass. (12 Allen) 377, 380; Wells v. Calnan, 107 Mass. 514; Swallow v. Emery, 111 Mass. 355; Sloan v. McCarty, 134 Mass. 245.

"In a contract of sale where the title remains in the vendor until the purchase price is paid and notes are given for unpaid installments of the purchase price, if it appears upon the construction of the contract that the consideration for the notes is the delivery of the goods with the right to acquire title by payment, it is no defense to an action upon the notes that the subject of the sale was destroyed by fire before the title passed." Am. Soda Fountain Co. v. Vaughn, 69 N. J. L. (40 Vroom) 582. Citing Burnley v. Tufts. 66 Miss. 48; Tufts v. Griffen, 107 N. C. 47, 10 L. R. A. 525; Osborne v. Lumber Co., 91 Wis. 526; White v. Solomon, 164 Mass. 516, 3 L. R. A. 537.

12. Tabbut v. Am. Insurance Co., 185 Mass. 420; Martineau v. Kitching (1872), L. R. 7 Q. B. 436, 456.

For loss by total or partial destruction of goods sold or contracted to be sold, see secs. 7 and 8.