carriage, and delivery to the carrier is not delivery to the buyer.117 And, although the seller may be authorized to deliver to a carrier, he may reserve the right of possession or property, and, if he does so, delivery to the carrier is not delivery to the buyer.118 If the buyer designates a particular carrier or a particular route, delivery to a different carrier or to a carrier for shipment by a different route is not delivery to the buyer.11 Duty to Insure Safe Arrival.

"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 the delivery due care and diligence shall be exercised by the seller." 120 The seller must use the usual precaution to insure delivery.121 Thus where the seller neglected to apprise the carrier that the value of the

117 Dunlop v. Lambert, 6 Clark & F. 600; Thompson v. Railroad Co., 1 Bond (U. S.) 152, Fed. Cas. No. 13,950; Bloyd v. Pollock, 27 W. Va. 75; Devine v. Edwards, 101 Ill. 138; Braddock Glass Co. v. Irwin, 153 Pa. 440, 25 Atl. 490; Herring-Marvin Co. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340; ante, p. 156.

118 Ante, p. 162.

119 Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787; Iasigi v. Rosenstein, 65 Hun, 591, 20 N. Y. Supp. 491.

A contract for the sale of sugar described it as "shipping or to be shipped per steamer E.," the price to be so much per pound "ex ship." There were also clauses, "Sea damaged, if any, to be taken at a fair allowance," and "No arrival, no sale." Held that, the sugar having been put on board the E., the purchaser's duty to receive it was not affected by the fact that during the voyage, owing to an accident to the vessel, part of the sugar was transferred to another vessel for transportation. Harrison v. Fortlage, 161 U. S. 57, 16 Sup. Ct. 488, 40 L. Ed. 616.

120 Buckman v. Levi, 3 Camp. 414, per Lord Ellenborough. In an action on an accepted draft on the consignment of a car load of fruit, it appeared that the consignor shipped the fruit during the cold season in a common box car, and the fruit was frozen in transit; that consignor could have shipped the fruit in a refrigerator car, so as to prevent freezing; and that consignee did not know the condition of the fruit when he accepted the draft. Held, that the consignor was negligent in so shipping the fruit, and could not recover its value. Wilson v. Fruit Co., 11 Ind. App. 89, 38 N. E. 827.

121 Clarke v. Hutchins, 14 East, 475; Ward v. Taylor, 56 Ill 494. Where the order was to ship by rail immediately, and the

goods exceeded £5, although the carriers had published, and it was notorious in the place of shipment, that they would not be responsible for a package above that value unless entered and paid for as such, and the package was lost, it was held, in an action for goods sold and delivered, that there had been no delivery.122 If the goods are misdirected by the seller, so as to prevent their receipt by the buyer, the delivery is bad.123 But the buyer must take any risks of deterioration necessarily incident to the transit.12 124

Duty to Insure.

As a rule the seller is not bound to insure.125 But if the dealings of the parties show that the seller is bound under the contract to insure when requested, and he fails on request to insure, and the goods are lost, he cannot recover payment.120 The English Sale of Goods Act provides: "Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit." 127

railroad company refused to transport without a release of liability, a delivery on these terms was good. Stafford v. Walter, 67 Ill. 83. 122 Clarke v. Hutchins, 14 East, 475.

123 Finn v. Clark, 10 Allen (Mass.) 479; Id., 12 Allen (Mass.) 522; Garretson v. Selby, 37 Iowa, 529, 18 Am. Rep. 14.

124 Bull v. Robinson, 10 Exch. 342, 24 Law J. Exch. 165; Leggat v. Brewing Co., 60 Ill. 158; Mobile Fruit & Trading Co. v. McGuire, 81 Minn. 232, 83 N. W. 833; McHenry v. Bulifant, 207 Pa. 15, 56 Atl. 226; Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. See Sale of Goods Act, § 33. And see ante, p. 261.

125 Bartlett v. Jewett, 98 Ind. 206.

126 New York Tartar Co. v. French, 154 Pa. 273, 26 Atl. 425. 127 Section 32 (3). The rule is borrowed from the Scotch law. Chalm. Sale of Goods Act (6th Ed.) 76; Benj. Sales (5th Eng. Ed.) 739. It is followed with modification in Sales Act, § 46 (3). Prof. Williston says it is probably in accord with business usage.

BUYER'S RIGHT TO EXAMINE GOODS.

92. Where goods are delivered to the buyer, which he 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.128

93. 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.129

An offer of delivery, accompanied with refusal to permit examination, or without reasonable opportunity to inspect, is invalid.130

The buyer is not deemed to have accepted until he has had a reasonable opportunity to inspect. He may, however, waive inspection.131 And if he fails to inspect within a reasonable

128 Sale of Goods Act, § 34 (1); Sales Act, § 47 (1). See, also, Sale of Goods Act, § 15 (2) (b); Sales Act, § 16 (b); ante, p. 263. 129 Sales Act, § 47 (2).

130 Isherwood v. Whitmore, 11 Mees. & W. 347, 10 Mees. & W. 757; Lorymer v. Smith, 1 Barn. & C. 1; Croninger v. Crocker, 62 N. Y. 151; Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393; Charles v. Carter, 96 Tenn. 607, 36 S. W. 396; Sun Pub. Co. v. Foundry Co., 22 Or. 49, 29 Pac. 6. Where delivery of hides was to be on payment of draft, an offer to allow examination at the railway station was sufficient. Sawyer v. Dean, 114 N. Y. 469, 21 N. E. 1012. A purchaser of lumber, sent to his yard in box cars in which it cannot be examined, may unload, inspect, and examine before acceptance. Holmes v. Gregg, 66 N. H. 621, 28 Atl. 17. Where by the contract the seller was to deliver iron of specified quality f. o. b. at Liverpool, and the buyer was to pay by bills of exchange at 60 days on delivery of shipping documents at New York, his right of inspection continued till the iron arrived in New York, and payment after receipt of the documents, but before opportunity to inspect, did not conclude the buyer from denying on acceptance. Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831. Although the place of delivery is ordinarily the place of inspection, the seller may consent to inspection at another place. Cefalu v. Fitzsimmons-Derrig Co., 65 Minn. 480, 67 N. W. 1018.

131 Castle v. Sworder, 30 Law J. Exch. 310, 312, per Cockburn, C. J. The circumstances of the sale may be such that the law will

time he cannot afterwards reject the goods.132 The right of inspection carries with it the right, if necessary for the purpose of testing, to use a reasonable quantity of the goods.133

As we have seen, where the seller delivers goods according to order for transportation to the buyer, as a rule, if the goods conform to the description, the property passes upon shipment.1 Nevertheless the buyer has the right of inspection before acceptance, and if they do not correspond with the contract the property does not pass, and upon inspection the buyer may refuse to accept them.135 Where goods are shipped C. O.

not imply the right to inspect before delivery and payment. Pettitt v. Mitchell, 4 Man. & G. 819.

If the buyer does not make a sufficient inspection, he cannot de fend an action for the price on the ground that it would have taken several hours. Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. 182 Toulmin v. Hedley, 2 Car. & K. 157; Lincoln v. Gallagher, 79 Me. 189, 8 Atl. 883; Doane v. Dunham, 79 Ill. 131; Brownlee v. Bolton, 44 Mich. 218, 6 N. W. 657; Boothby v. Scales, 27 Wis. 626; McClure v. Jefferson, 85 Wis. 208, 54 N. W. 777; Knoblauch v. Kronschnabel, 18 Minn. 300 (Gil. 272); Maxwell.v. Lee, 34 Minn. 511, 27 N. W. 196.

Where iron was shipped from Liverpool to New York in three shipments, and each lot was inspected within 10 days of its arrival, and the buyer notified his rejection within a month after arrival of the first shipment, the delay was not so great as to be held unreasonable as matter of law. Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831.

What is a reasonable time depends on the circumstances, including the fact of their being perishable or nonperishable. Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891.

133 Philadelphia Whiting Co. v. White-Lead Works, 58 Mich. 29, 24 N. W. 881. Cf. Nelson v. Overman, 38 S. W. 882, 19 Ky. Law Rep. 161; Zipp Mfg. Co. v. Pastorino, 120 Wis. 176, 97 N. W. 904. But, where the buyer has notified the seller of his rejection, he cannot use a portion of the goods in making a test, for the purpose of determining the question of their fitness, or of providing evidence of their unfitness, and still insist on his right to reject them. Cream City Glass Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28, 21 L. R. A. 135, 36 Am. St. Rep. 895.

134 Smith v. Edwards, 156 Mass. 221, 30 N. E. 1017; ante, p. 155. 135 Ante, p. 159. Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 Am. St. Rep. 243.

"It is said that, on the delivery of the iron on shipboard at Liverpool, the title vested in the plaintiffs, and that the vesting of the title in the vendees implies an acceptance, and is inconsistent with

D., according to the weight of authority, the property passes; the condition merely having the effect of reserving the seller's lien for the price.13 Whether the right of inspection exists in such cases is a question on which the authorities are not in accord.1 137

the alleged right of inspection and rejection on its arrival in New York. There can be no doubt that, on delivery to the carrier of iron corresponding with the contract, the title would immediately vest in the purchasers, and the iron would thereafter be at their risk; nor is there any doubt of the general rule that delivery of goods corresponding with the contract is a condition precedent to the vesting of the title in the vendee. * But, assuming that the title to the iron for some purposes vested in the plaintiffs on delivery to the steamers, it was, as between the vendors and vendees, a conditional title, subject to the right of inspection and rejection for inferior quality on arrival at New York." Pierson v. Crooks, supra.

Although under the circumstances of the case the property passes, the buyer may reject if on examination the goods do not fulfill the conditions. Alden v. Hart, 161 Mass. 576, 37 N. E. 742.

Where the goods fulfill the conditions and the property has passed, but the goods are destroyed, so that an examination is impossible, the buyer is not relieved from liability to pay the price. Wadhams & Co. v. Balfour, 32 Or. 313, 51 Pac. 642.

Where the terms are cash, and the goods are to be delivered f. o. b. at the place of manufacture, the inspection, if any, must be made at that place. Lawder & Sons Co. v. Grocery Co., 97 Md. 1, 54 Atl. 634, 62 L. R. A. 795.

186 Ante, p. 157.

187 That the right exists, see Lyons v. Hill, 46 N. H. 49, 88 Am. Dec. 189; Thick v. Railway Co., 137 Mich. 708, 101 N. W. 64, 109 Am. St. Rep. 694. That it does not exist, see Wiltse v. Barnes, 46 Iowa, 210. A question for the jury: Louisville Lithographic Co. v. Schedler, 23 Ky. Law Rep. 465, 63 S. W. 8. The question is discussed 18 Harv. Law Rev. 386.

Sales Act, § 47 (3), provides that the buyer is not entitled to examine the goods in the absence of agreement permitting it. Prof. Williston says that this subsection states the actual practice of large express companies, and probably states the existing law, clting Wiltse v. Barnes, supra.