Parr (1886) 141 Mass. 593, 6 N. E. 787; St. John Bros. Co. v. Falkson (1921) 237 Mass. 399, 130 N. E. 51. Minnesota. See the reported case (OHIO CONFECTION Co. v. EIMON MERCANTILE Co. ante, 952).

Missouri. Compare Cluley-Miller Coal Co. v. Freund Packing & Mfg. Co. (1909) 138 Mo. App. 274, 120 S. W. 658.

Montana.-See Old Kentucky Distillery V. Stromberg-Mullins Co. (1917) 54 Mont. 285, 169 Pac. 734.

New York.-Hills v. Lynch (1864) 3 Robt. 42.

In Eldorado Jewelry Co. v. Werner (Ill.) supra, a suit for damages for breach of an alleged contract for the sale of jewelry, it was said: "It appears without dispute that the goods, by the terms of the contract, were to be shipped by the American Express Company. Delivery to the United States Express Company was, therefore, not a delivery to the defendants, until the goods reached them, and they were then rejected by the defendants as above stated. The title never passed to the defendants.”

Wheelhouse v. Parr (Mass.) supra, was an action on a contract for goods sold and delivered. The court pointed out that when goods ordered are to be sent to the purchaser by the vendor,

and the latter delivers them to the carrier agreed on, the goods so delivered are at the purchaser's risk, and the property right is considered as vested in him subject to the vendor's right of stoppage in transitu, and said: "The defendant had made a purchase of leather in November, previously to the purchase of that the price of which is in controversy, under a direction to the plaintiff to 'ship to care of D. & C. McIver, shipping merchants, Liverpool, as soon as possible, for their next steamer to Boston direct.' This shipment was made as ordered; and on December 16, 1884, the defendant sent a further order, saying: 'As regards the shipping of the leather just received, you have done everything satisfactory. Ship this order in like manner.' The directions by which the plaintiff was to be controlled must be interpreted as requiring him to forward the goods to D. &. C. McIver, to be transported by them by the Cunard Line, of which they were managers and agents. The words 'their next steamer' could not have meant any steamer which would accept freight from D. &. C. McIver. Cases may be readily imagined where these words would be of the highest importance, as if the defendant had an open policy of insurance protecting his goods which might be sent by the Cunard Line. It might also be true that the defendant would not deem a policy of insurance necessary when goods were sent by a well-established passenger line, where greater precautions might probably be taken for safety, which he would deem necessary when they were sent by a purely freighting steamer. The goods were actually forwarded to D. & C. McIver, with instructions in conformity with the directions of the defendant; and, had the matter ended there, so far as any direction to D. & C. McIver is concerned, the plaintiff would be entitled to treat them as delivered to the defendant, and to require him to pay the purchase money. If, on the other hand, while the goods were yet in the hands of the carrier, and before before transportation of them had commenced, the plain

tiff changed the directions given to him by the defendant, or authorized the carrier to transport them in a different mode from that directed by the defendant, and loss has thereby occurred, he cannot contend that they were delivered to the defendant by him. By continuing to exercise dominion over them, and by giving a new direction impliedly withdrawing the directions previously given, he cannot be allowed to assert that he had made a complete delivery by his original act, if a loss has occurred by reason of that which he has subsequently done or directed. The change in the directions given relates back to and qualifies the original delivery. The plaintiff, in answer to a letter from D. & C. McIver, after the goods had reached them, inquiring whether they were to keep the goods for our steamer 14th inst., or ship by the Glamorgan,' ordered them to be shipped by the steamer arriving out first, presumably the steamer which D. & C. McIver believed would be the first to arrive. The Glamorgan was not a steamer of any line of which D. & C. McIver were owners or agents, and in no way answers the description of 'their steamer' as applied to D. & C. McIver. By neglecting to limit the authority of D. & C. McIver to send by a steamer which could be thus described, and by directing them to send by the steamer which would first arrive, the plaintiff had failed to comply with the orders of the defendant as to the shipment of goods, and, if correct directions had originally been given, had withdrawn them and substituted others. When, therefore, exercising the authority thus given by the plain

tiff, D. & C. McIver send by the Glamorgan, as being in their judgment the steamer likely to arrive first, and a loss occurs, it should not be borne by the defendant, whose directions have not been followed."

See to the same effect, St. John Bros. Co. v. Falkson (1921) 237 Mass. 399, 130 N. E. 51, wherein it was also held that whether the defendant had waived his right arising from a delivery of goods to the wrong carrier was,

under the circumstances, a question for the jury.

So, too, in the reported case (OHIO CONFECTION Co. v. EIMON MERCANTILE Co. ante, 952), an action to recover the purchase price of candy ordered by the defendant from the plaintiff, it is held that title to goods directed by the buyer to be shipped by boat did not pass where they were shipped by rail instead. The court points out that under subdivision 2 of rule 4, § 19 of the Uniform Sales Act, a delivery by a seller to a carrier for transmission to the buyer is presumed to be an unconditional appropriation of the goods to the contract, and that such a delivery is elsewhere (§ 46, subd. 1) declared to be deemed a delivery to the buyer unless a contrary intent appears. And it is said that the inference is that delivery to a carrier other than the one designated by the buyer will not be regarded as a delivery to him.

In Hills v. Lynch (1864) 3 Robt. (N. Y.) 42, an action by a vendor to recover the possession of property seized on execution by the defendant, a sheriff, as the property of a vendee, it appeared that the goods ordered to be shipped by boat were taken by a cartman to a railroad office for shipment, at which place they were seized. It was said: "The delivery by the plaintiffs to the Hudson River Railroad Company was no more than the deposit of the goods with any other person, to be delivered to the purSuch chasers, would have been. company was the plaintiffs' agent, and ' could not refuse to redeliver such

goods to them on demand at any time before they reached the purchasers' possession. The selection of the

People's Line of steamboats as the carrier, by the purchasers, necessarily destroyed any right on the part of the plaintiffs to select any other. It is even more than doubtful whether the vendees could have recovered for any loss of the goods by such carriers, although they might have accepted and ratified such delivery. Coombs v. Bristol & E. R. Co. (1858) 3 Hurlst. & N. 510, 157 Eng. Reprint, 572, 27 L. J. Exch. N. S. 401, 6 Week. Rep. 725; Coats v. Chaplin (1842) 3 Q. B. 483,

114 Eng. Reprint, 592, 2 Gale & D. 522, 11 L. J. Q. B. N. S. 315, 6 Jur. 1123; Angell, Carr. §§ 496, 498. In order to change the title to chattels, the delivery of them to the vendee or of his agent duly authorized by him to receive them, whether actual or symbolical, must be final and irrevocable, saving the right of stoppage in transitu, and the acceptance must be complete and unconditional. Jordan v. Norton (1838) 4 Mees. & W. 155, 150 Eng. Reprint, 1382, 1 Horn & H. 234, 7 L. J. Exch. N. S. 281, 6 Eng. Rul. Cas. 142; Bill v. Bament (1841) 9 Mees. & W. 36, 156 Eng. Reprint, 16, 11 L. J. Exch. N. S. 81; Parker v. Wallis (1855) 5 El. & Bl. 21, 119 Eng. Reprint, 390, 3 Week. Rep. 417; Kent v. Huskinson (1802) 3 Bos. & P. 233, 127 Eng. Reprint, 128, 6 Revised Rep. 777; Dole v. Stimpson (1838) 21 Pick. (Mass.) 384. I am not aware of any principle which could convert a carrier, not only not selected by a vendee, but entirely different from the one selected by him, into an agent for him, to accept the delivery of goods. The seizure by the defendant cannot be justified, therefore, by any supposed actual delivery of the goods to any agent of the vendees, or inchoate delivery to them, or any parting with the possession by the plaintiffs with intent to transfer the title and an acceptance thereof by the defendant as the agent of such vendees. But in fact the delivery of the goods to the railroad company was by mistake and contrary to the instructions of the plaintiffs to their cartman, who carried them there. They were, as regarded the plaintiffs, unlawfully in the possession of the company when seized, and the plaintiffs had a right to reclaim them in order to forward them by the proper means of transmission, which could alone bind the vendees. The defendant had no more right to take them in the depot, because it was that of a common carrier, than in any store in the city, in which such cartman might have thought proper to deposit them." In Oneida Knitting Co. v. Popular Dry Goods Co. (1918) Tex. Civ. App. 202 S. W. 811, an action on

an open account for goods alleged to have been sold and delivered, it ap peared that the buyer had specified that the goods were to be shipped entirely by rail whereas shipment was made by water, as a result of which delivery was delayed and the goods damaged. The court said: "It is contended by appellant that, upon the delivery of the goods to the carrier at Philadelphia, such delivery would be a delivery to appellee. Ordinarily, this is the rule. Upon such delivery the title would vest in the consignee, and the loss or damage after such delivery would be his. Embree-McLean Carriage Co. v. Lusk (1895) 11 Tex. Civ. App. 493, 33 S. W. 155; Specialty Furniture Co. v. Kingsbury (1901)

Tex. Civ. App. —, 60 S. W. 1030. However, the buyer may designate the vehicle of carriage, and, when so designated, the order must be followed or there is no delivery. The evidence in this case authorized the trial court to find that the appellee designated the vehicle of carriage, and that this was agreed to by the salesman of appellant. There was, therefore, no delivery to appellee and the goods were at appellant's risk."

.

In Woodbine Children's Clothing Co. v. Goldnamer (1909) 134 Ky. 538, 121 S. W. 444, 20 Ann. Cas. 1026, it appeared that the plaintiff company received an order from the defendant for certain clothing to be shipped over the Merchants' Despatch in care of the Louisville & Nashville Railroad. The goods were shipped over the West Jersey & Seashore Railroad, however, and, arriving too late for the season for which they were intended, were refused by the. defendant, whereon the plaintiffs (appellants) sued to recover therefor. The court said: "The authorities are conflicting, but the weight thereof seems to be that where goods of a certain character are ordered, and the buyer directs that they be sent by a common carrier, or where, by course of trade, delivery to a common carrier to be sent to the buyer is the evident intent, in such cases the property passes as soon as the goods are put in the carrier's possession.

But, if the purchaser designates a particular carrier to which the goods should be delivered for shipment and the seller fails to deliver the goods to such carrier and selects some other, or if it appears that it was not the intention of the parties at the time of the sale that a delivery of the goods to the carrier by the seller was to be considered a delivery of the goods to the purchaser, then the rule does not apply. If delivery is made by the seller to a carrier designated by the buyer, it is a delivery to the buyer, and he takes the risk of the delay and loss. 24 Am. & Eng. Enc. Law, 1071; Com. v. Russell (1889) 11 Ky. L. Rep. 576; James v. Com. (1897) 102 Ky. 108, 42 S. W. 1107; Magruder v. Gage (1870) 33 Md. 344, 3 Am. Rep. 177. In the case at bar appellant agreed, as directed by appellees, to ship the goods by the Merchants' Despatch in care of the Louisville & Nashville Railroad, and it violated this agreement when it shipped the goods over the West Jersey & Seashore Railroad. It undertook to excuse itself in this by showing that the Merchants' Despatch had no connection with Woodbine, New Jersey, claiming, therefore, that it had a right to ship by any carrier of its selection. This would be true if it had notified appellees of this fact before the shipment, thereby giving them an opportunity to select a carrier other than the Merchants' Despatch, if they desired to do so, and, in the event they failed to make their selection, appellant would have been authorized to have shipped the goods as it did. Appellant had plenty of time to have given this notice, for it knew in October the route over which appellees had directed these goods shipped, and it did not ship the goods until March 19, 1908. Therefore we are of the opinion that the court committed no error in directing the jury to find against appellant on its claim." But in Cluley-Miller Coal Co. Freund Packing & Mfg. Co. (1909) 138 Mo. App. 274, 120 S. W. 658, a case involving somewhat similar facts, the court reached a different conclusion. In that case, an action to recover the purchase price

V.

of two cars of coal alleged to have been sold and delivered to the defendants, it appeared that the defendant had ordered the plaintiff to ship two cars of coal "via Rock Island," meaning the Chicago, Rock Island & Pacic Railroad. The only means by which west-bound freight could be shipped from the plaintiff's mine was by way of another carrier (the Louisville & Nashville Railroad) and because of an inability to obtain "Rock Island" cars for immediate delivery the coal was shipped in Chicago & Alton Railroad cars, wherefore it was delivered to the defendant by the Chicago & Alton Railroad and a connecting carrier, and not by the Rock Island as ordered. The court said: "But does it follow that this breach of the contract by plaintiff justified the refusal of defendant to receive the coal at St. Joseph? We might answer this question in the affirmative under facts and circumstances different from those in the record before us. Had it appeared that the Rock Island Company had a line into Belleville, we would say that a contract calling for delivery of the coal f. o. b. cars at Belleville to that company would constitute it the only agent of defendant to which delivery could be made, and we would sanction the position of defendant outlined in their brief: . . But the facts before us compel us to hold that the breached condition of the contract was in the nature of an independent, not a dependent, covenant, and therefore that defendant was not justified in refusing the coal, but should have accepted it, relying on its right to recover damages from plaintiff sustained in consequence of the breach." In conclusion the court said: "In ascertaining the intention of the parties to this contract, necessarily we must place ourselves in their situation. Both knew that the Rock Island does not reach Belleville and could not receive the coal until it arrived at St. Louis. Consequently, the position of defendant that the Rock Island was its designated agent to receive the delivery at Belleville is untenable. The contract provided for delivery at Belleville, and delivery at