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White v. Schweitzer

Supreme Court of New York, Appellate Division

December 28, 1911

WILLIAM E. WHITE, Respondent,
v.
NATHAN SCHWEITZER and ISIDOR S. SCHWEITZER, Appellants.

Page 545

APPEAL by the defendants, Nathan Schweitzer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 10th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying the defendants' motion for a new trial made upon the minutes.

COUNSEL

Gerald B. Rosenheim [Max D. Steuer with him on the brief], for the appellants.

Hartwell Cabell, for the respondent.

THOMAS, J.:

The complaint alleges that the plaintiff's assignor 'sold and agreed to ship to defendants in New York' a carload of turkeys 'at an agreed price of eighteen cents per pound, less the freight on said car between Maysville and New York city.' The answer, without otherwise denying the allegation, states as a defense that the plaintiff's assignor 'sold and agreed to ship to the defendants in New York,' dry-picked stock, and that defendants 'agreed to pay for the same at and

Page 546

after the rate of eighteen cents per pound, less the freight on said car between Maysville and New York city, to wit, f. o. b. New York.' I shall discuss only the question whether the delivery to the carrier at Maysville was a delivery to the defendants so as to place upon them the risk of transportation. There is no evidence of special contract with the carrier on the part of the consignor. But it is shown that, before receipt of the goods, the invoice and bill of lading came to the buyer, and that the seller asked for and received an advance by check (later stopped) on the purchase price, which indicates that the parties did not contemplate that the payment of the whole price should precede delivery of the goods, but that the buyers should make the advancement and pay the freight, to be deducted from the whole sum promised. The goods arrived in New York in bad condition, and one issue is whether this arose during transportation, and if so at whose risk. The seller's legal duty, if further unmodified, was to deliver to a suitable carrier a carload of the goods ordered, properly prepared for transportation. ( Waldron v. Romaine, 22 N.Y. 368.) Thereupon the consignee became the presumptive owner thereof, enabled to recover for breach of its duty against the carrier (Everett v. Saltus, 15 Wend. 474; Sweet v. Barney, 23 N.Y. 335), and as between the parties delivery to the carrier was a delivery to the buyer, and the title thereupon vested in the latter. This rule is elementary. In Krulder v. Ellison (47 N.Y. 36) a merchant in New York received from persons in Rochester an order in writing that there be sent them 'via canal' goods, later lost in transit. The consignees recovered against the carrier under the above rule. That case presented two facts that do not appear in the present record: (1) The seller sent the buyers a bill of sale; (2) the buyers directed shipment over a particular line of transportation. But neither fact affects the result, as no bill of sale is required where delivery is made according to the agreement to a shipper, and the rule is that in absence of specific directions delivery may be made to any proper carrier. For instance, in Gilbert v. N.Y. C. & H. R. R. R. Co. (4 Hun, 378) the delivery of a full carload as ordered had not been made to the carrier. Hence the title did not vest in the consignee, but the rule was recognized that 'when

Page 547

property is sold to be shipped by cars or other public conveyance ordinarily the title passes on delivery to the carrier.' In Dutton v. Solomonson (3 Bos. & Pul. 582), as interpreted in the opinion in Krulder v. Ellison (supra), if a tradesman order goods to be sent by a carrier, though he names no particular carrier, the moment the goods are delivered to the carrier it operates as a delivery to the purchaser. The rule has been the basis of decision in actions against the carrier for loss or injury to the goods as well as in actions between sellers and buyers. Some exceptions to it have been suggested, as where the consignee agreed to pay the freight, where the consignor had a special contract with the carrier which enabled him to maintain an action, where the buyer was not charged under the Statute of Frauds, and the further exception has been suggested, where the expense of transportation is borne by the consignor or is included in the whole purchase price. In the case at bar the consignee upon paying the freight could deduct it from the price payable, for it would be a partial payment thereon. None of the conditions, unless it be the last one, is pertinent to the present discussion. If thus far there has been no error in the reasoning, I consider that Mee v. McNider (109 N.Y. 500) is decisive, that due delivery aboard at Maysville was delivery to the buyer. In that case plaintiff agreed to sell to defendant 500 bags of cocoa to be shipped by steamer from Bahia to New York for a specified price, 'C., F. & I.,' meaning cost, freight and insurance. The agreement was in this signed memorandum: 'Sold for account of Mee, Billings & Co., London, to James McNider,' certain goods, 'at 59 s. per cwt., C. F. & I., by steamer to N.Y. , buyers to furnish cable credit or pay bankers' commission.' The opinion states: 'The price is fixed at fifty-nine shillings per cwt., and this is made up of the cost, the freight and the premium of insurance. Thus the purchaser deals with the matter in gross and not in detail, transacts the various branches of the business with one person instead of three, fixes his liability at a lump sum, and in case of loss will recover the amount of his interest under the policy. * * * On the part of the vendor the shipment by steamer was an effectual appropriation of the cocoa to the buyer, and at that moment the agreement on the vendor's part

Page 548

was executed. The plain obligation of the purchaser, as defined by the written contract then attached, and he was bound to accept and pay for the cargo at the price named and in the manner specified. It necessarily follows that injury to the cocoa during the voyage was no excuse for non-performance, and as the amount due, if anything, was conceded, there was no evidence which required the submission of the case to the jury.' It is noticeable that in that instance there was a memorandum of sale, but this is immaterial if all that was required of the seller to perfect the sale and vest the title in the buyer was to deliver to the carrier. The suggestion that, where the buyer is to pay the freight, the title remains in the seller, has no present application. If such be an indication of continued ownership by the consignor, it may be upon the ground that the buyer has not fulfilled the agreement for sale, but here such payment is a part of the purchase price, and the seller did not exact payment before delivery. In Dutton v. Solomonson (supra), an action against the buyer for the price of the goods, it was stated by counsel that while a delivery to a carrier is in law a delivery to the vendee, and thereafter the goods remain at his risk, there is an exception when, by special contract, the vendor is to pay for the carriage, but the court interrupted the argument with the intimation that the delivery to the carrier was delivery to the buyer, and later Lord ALVANLEY, Ch. J., stated that the 'only exception to the purchaser's right over the goods is that the vendor, in case of the former becoming insolvent, may stop them in transitu.' In Mee v. McNider (supra) reference is made to Ireland v. Livingstone (L. R. 5 H. L. 395), where plaintiffs, commission agents at Mauritius, were ordered by defendant at Liverpool to purchase and ship to the latter in England goods at a price covering freight and insurance. The decision involved the issue whether the order was fulfilled in regard to the amount shipped, but the discussion aids present solution. Mr. Justice BLACKBURN said: 'The terms at a price, 'to cover cost, freight and insurance, payment by acceptance on receiving shipping documents,' are very usual, and are perfectly well understood in practice. The invoice is made out debiting the consignee with the agreed price (or the actual cost and commission,

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