cases, delivery to any other than the designated carrier is not a performance of the seller's obligation to deliver.* If the buyer does not designate a carrier, delivery to any carrier will be delivery to the buyer. In such cases, the seller is the buyer's agent in selecting the carrier." If there be more than one carrier between the points of shipment and receipt, the seller must send the goods by the usual carrier.' Delivery to the carrier must be unconditional and without other reservation than that of the right of stoppage in transitu. A delivery retaining a jus disponendi is insufficient." The carrier, upon a proper delivery, becomes the agent of the buyer and not of the seller,10 and the risk of transportation passes purchaser." Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. L. 320, 323, 22 L. R. A. 415. 4. Wheelhouse v. Parr, 141 Mass. 595; Iasigi v. Rosenstein, 65 Hun (N. Y.), 595; Hills v. Lynch, 3 Rob. (N. Y.) 42. 5. Townes v. Okla. Mill Co., 85 Ark. 596; Falvey v. Richmond, 87 Ga. 99; Magruder v. Gage, 33 Md. 344; Kessler v. Smith, 42 Minn. 494; Comstock v. Affoelter, 50 Mo. 411; Hobart v. Littlefield, 13 R. I. 341; Ranney v. Higby, 4 Wis. 174; Dutton v. Solomonson, 3 B. & P. 582; Richardson v. Dunn, 2 Q. B. 218; Johnson v. Lancashire & Y. R. R. Co., L. R. 3 C. P. D. 499. The seller may recover the price whether the goods are received or not. Hill v. Gayle, 1 Ala. 275; Burton v. Baird, 44 Ark. 556; Diversy v. Kellogg, 44 Ill. 114. 6. Benjamin on Sales, §§ 181, 693; Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. L. 320, 22 L. R. A. 415. 7. Robinson v. Pogue, 86 Ala. 257; Watkins v. Paine, 57 Ga. 50; Garretson v. Selby, 37 Iowa, 529; Putnam v. Tillotson, 54 Mass. (13 Met.) 517; Merchant v. Chapman, 86 Mass. (4 Allen) 362; Comstock v. Affoelter, 50 Mo. 411; McLaughlin v. Marston, 78 Wis. 670. "Where a contract is made for the sale of goods, which are not delivered, but are to be sent to the pur chaser, 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 direction 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 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. To the same effect is Meyer Bros. Drug Co. v. McMahon, 15 Mo. App. 18; Leggett & M. Tobacco Co. v. Collier, 89 Iowa, 144; Wheelhouse v. Parr, 141 Mass. 595 (see note 11, post). 8. 2 Mechem on Sales, § 1195. 9. See The John K. Shaw, 32 Fed. 491; Blum v. Am. Grocery Co., 116 Ga. 784; Sohn v. Jervis, 101 Ind. 578; 1 Mechem on Sales, § 769. 10. Benjamin on Sales, § 693. "It is not asserted that the receipt by the carrier constitutes acceptance by the vendees-it is only a delivery, not an acceptance; that the carrier, in the absence of authority to accept, represents the purchasers only to receive and forward." Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. L. (26 Vroom) 320, 322, 22 L. R. A. 415. To the same effect is Hanson v. Armitage (1822), 5 B. & Ald. 557; Norman v. Phillips, 14 M. & W. 277; Meredith v. Meigh, 2 E. & B. 364. to the buyer." But the seller is responsible for the goods being in a merchantable condition when delivered to the carrier,12 and he must use due care and diligence and take the usual precautions for insuring the safe delivery to the buyer;13 so that, in case of 11. Mee v. McNider, 109 N. Y. 500; Dannemiller v. Kirkpatrick, 201 Pa. St. 218 (vendor paid freight and insurance); King v. Meredith, 2 Camp. 639 (notwithstanding vendor pays freight); Vale v. Bayle, Cowp. 294. By express agreement the risk of loss from transportation may be assumed by the seller but "in order to amount to such a promise as this entirely shifting the responsibility as to the risk of transportation from the defendants (buyers) and taking it upon himself, there ought, we think, to be something more clear and definite than the loose expression which we find at the close of his letter" ("if this should not be satisfactory to you, I will send you any article you may deem necessary "). Loomis v. Corbin, 29 Conn. 60, 62, "When goods ordered and contracted for are not directly delivered to the purchaser, but are sent to him by the vendor and the vendor delivers them to a carrier to be transported in the mode agreed upon, or when no agreement is made, or directions given, to be transported in the usual mode; or when the purchaser, being informed of the mode of transportation, assents to it; or when there have been previous sales of goods, to the transportation of which in a similar manner the purchaser has not objected, the goods when delivered to the carrier are at the risk of the purchaser, and the property is deemed to be vested in him subject to the vendor's right of stoppage in transitu. This proposition assumes that proper directions and information are given to the carrier as to forwarding the goods." Wheelhouse v. Parr, 141 Mass. 593, 595. Citing Whiting v. Farrand, 1 Conn. 60; 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. See sec. 22. 12. Loomis v. Corbin, 29 Conn. 60; Lord v. Edwards, 148 Mass. 476, 2 L. R. A. 519. "When goods are ordered from a distant place, the vendor's duty to deliver them in a merchantable condition is complied with if the goods are in proper condition when delivered to the carrier, provided the injury received during the transit does not exIceed that which must necessarily result from the transit." Benjamin on Sales, § 693; Dunlop v. Lambert, 6 Cl. & F. 600 (hoop iron bright and in good order delivered to carrier but necessarily rusted and not merchantable upon arrival at point of receipt). 13. Ward v. Taylor, 56 Ill. 494; Quimby v. Carr. 89 Mass. (7 Allen) 418; Finn v. Clark, 92 Mass. (10 Allen) 484, 94 Mass. (12 Allen) 526; Buckman v. Levi, 3 Camp. 414; Cothay v. Tute, 3 Camp. 129; Benjamin on Sales, § 694. "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 15 loss, the buyer may have a remedy over against the carrier." This includes shipping according to the buyer's orders where any are given, and apprising the carrier of the character and nature of the goods so as to charge him with notice of the care they may need.16 Failure to exercise such care and diligence will throw the risk and loss of transportation upon the seller, and the buyer may refuse to recognize it as a valid delivery.' 17 The seller should give notice to the buyer of the time and place and mode of shipment, unless the carrier is designated by the buyer. 18 In the case of express directions, usual course of business between the parties, or usages of trade to that effect, the seller must effect insurance or give the buyer such notice as will enable him to do so.19 14. Ward v. Taylor, 56 Ill. 494; Davis v. Koenig, 165 Pa. St. 347. "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." Buckman v. Levi, 3 Camp. 414. 15. Townes v. Okla. Mill Co., 85 Ark. 596; Aultman v. Henderson, 32 Ill. App. 331; Garretson v. Selby, 34 Iowa, 529; Finn v. Clark, 92 Mass. (10 Allen) 484, 94 Mass. (12 Allen) 525; Wheelhouse v. Parr, 141 Mass. 593; Dwight v. Eckert, 117 Pa. St. 490. The buyer directed the goods to be shipped in care of a third person. They were shipped by the usual mode of transportation but not in the care of the third person. Held, no deliv ery unless the buyer waived the noncompliance with the terms of shipment. Woodruff v. Noyes, 15 Conn. 335. The burden of proof is on the seller to show that he complied with the terms of the order. Wolf v. Dietzsch, 75 Ill. 205. If goods sent by a carrier have been delayed in the transmission in consequence of the vendor's failure to put the purchaser's name or residence upon them or in the bill of lading, and are finally destroyed before reaching the purchaser, his claiming the goods as his own and endeavoring to have them forwarded to him after knowledge of the vendor's failure to direct them properly, will not amount to a waiver thereof unless he intended to waive the same. Finn v. Clark, 94 Mass. (12 Allen) 523. 16. Clarke v. Hutchins, 14 East, 475. 17. Wheelhouse v. Parr, 141 Mass. 593; Clarke v. Hutchins, 14 East, 475; Buckman v. Levi, 3 Camp. 414; Benjamin on Sales, § 694. 18. Bradford v. Marbury, 12 Ala. 520; Burton v. Baird, 44 Ark. 556; Dawes v. Peck, 8 T. R. 330; Cooke v. Ludlow, 2 B. & P. (N. R.) 111, 119; Bushell v. Wheeler, 15 Q. B. 442. 19. Bartlett v. Jewett, 98 Ind. 206; Elmore v. Kearny, 23 La. Ann. 479; N. Y. Tartar Co. v. French, 154 Pa. St. 273; Smith v. Lascelles, 1 R. R. 457. Section 47. Right to Examine the Goods.-(1.) Where goods which he has not previously examined are delivered to the buyer, he is not deemed to have accepted such goods unless and until he has had a reasonable opportunity of examining the same for the purpose of ascertaining whether they are in conformity with the contract. (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. (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, the buyer is not entitled to examine the goods before payment of the price in the absence of an agreement permitting such examination. In the case of such executory contracts to sell goods by sample or by description, it is an implied condition precedent to the buyer's obligation to accept the goods and pay the price, that the goods shall correspond in kind and quality with the sample or description.1 In these cases and all others where the seller tenders delivery of goods which the buyer has not examined, he is entitled to a reasonable opportunity to examine the goods, in order to ascertain whether they conform to the terms of the contract in kind, quality, "In delivering goods on shipboard, the seller is bound not only to charge the shipmaster or shipping company with them effectually but, though not bound to insure, he must give such notice as to enable the buyer to insure." Bell on Sales, p. 89. Quoted in Chalmers' Sale of Goods Act, p. 76. 1. Section 11. Shute v. Cotton Mills, 132 N. C. 271; Wright v. Ramp, 41 Ore. 285. The difference between No. 1 and No. 3 mackerel is one of kind or class and not of quality; vendee, to whom No. 3 had been delivered for No. 1, but had not been discovered by him, could not affirm and accept delivery so as to acquire title as against vendor's attaching creditors. Gardner v. Lane, 94 Mass. (12 Allen) 39, 44. Cited in Cohen v. Pemberton, 53 Conn. 221, 232. If the buyer rejects the material without using it, he relies upon the description as a condition precedent, and not as an implied warranty. Joseph Bros. Co. v. Shonthal Co., 99 Md. 382. Citing Columbian Iron and quantity; and he is not deemed to have accepted the goods, unless and until such an opportunity has been afforded him.3 Works v. Douglass, 84 Md. 44, 65, 33 L. R. A. 103; Warren Glass Co. v. Keystone Co., 65 Md. 547. 2. Thick v. Detroit R. R. Co. 137 Mich. 703, 708; Meagher v. Cowing, 149 Mich. 416; Benjamin on Sales, § 701. Goods sold in Baltimore to be shipped to New Orleans, "terms cash to be delivered F. O. B. Baltimore," means that the seller is entitled to payment at Baltimore upon delivery of the goods there for shipment, and the buyer had no right to require delivery to him in New Orleans where he had an opportunity to inspect the goods before making payment. Lawder v. Mackie Grocery Co., 97 Md. 1. 3. Mich. Stone Co. v. Harris, 81 Fed. 928; Hudson v. Germaine Fruit Co., 95 Ala. 621; Demens v. Le Moyne, 26 Fla. 323; Doane v. Dunham, 79 Ill. 131, 65 Ill. 512; Alden v. Hart, 161 Mass. 576, 580; Schloss v. Feltus, 96 Mich. 619; Knoblauch v. Kronschnabel, 18 Minn. 300; Holmes v. Gregg, 66 N. H. 621; Pollen v. Le Roy, 30 N. Y. 549; Dustan v. McAndrew, 44 N. Y. 72; Croninger v. Crocker, 62 N. Y. 151; Briggs v. Hilton, 99 N. Y. 517; Anderson v. Reed, 106 N. Y. 333 (chemical analy、 sis); Pierson v. Crooks, 115 N. Y. 539; Bigler v. Atkins, 118 N. Y. 671; Bliss Co. v. U. S. Incan. Gas Light Co., 149 N. Y. 300; Sun Publishing Co. v. Minn. Type Foundry Co., 22 Ore. 49; Holt v. Pie, 120 Pa. St. 425; Ancrum v. Wehman, 15 S. C. 118; Charles v. Carter, 96 Tenn. 607; Boughton v. Standish, 48 Vt. 594; Bartholomae v. Paull, 18 W. Va. 771; Isherwood v. Whitmore, 11 M. & W. 347; Startup v. Macdonald (1843), 6 M. & G. 593; Lorymer v. Smith, 1 B. & C. 1; Toulmin v. Hedley (1845), 2 C. & K. 157, 160; Hunt v. Hecht, 8 Ex. 814, 817; Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, 456; 2 Mechem on Sales, § 1375; Benjamin on Sales, §§ 695, 701. "If it does not correspond with the warranty when delivered the vendee is not merely justified in not receiving it, but he may receive it for the purpose of examination, and if found not to be of the quality or description warranted, or, what is the same thing, not to correspond with the sample, he may return it to the vendor, the examination and return being within a reasonable time." Merriman v. Chapman, 32 Conn. 146, 148. Citing Street v. Blay, 2 B. & Ad. 456. "It would work injustice to treat an essential term of the contract as performed or waived at a time when the purchaser is still unable to tell whether it has been performed or not." Edgar v. Breck & Sons, Corp., 172 Mass. 581. Citing White v. Miller, 71 N. Y. 118, 129; Shaw v. Smith, 45 Kans. 334, 338, 11 L. R. A. 681; Henshaw v. Robins, 50 Mass. (9 Met.) 83. "On such a sale (by sample) 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. Isherwood v. Whitmore, 11 M. & W. 347; Startup v. McDonald, 6 M. & G. 593; Croninger v. Crocker, 62 N. Y. 151, 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. Herron, Abbotts Admr. 209, 214; Salmon Falls Mfg. Co. v. The Bark Tangier, 1 Cliff. 396; Dibble v. Morgan, 1 Wood, 406; The Tybee, Id. |