Opinion
(January Term, 1878.)
Contract — Vendor and Vendee — Delivery to Carrier — Bill of Lading.
1. As soon as an order for goods is accepted by the vendor, the contract is complete without further notice to the vendee; and such contract is fully performed on the part of the vendor by the delivery of the goods in good condition to the proper carrier.
2. A delivery to a carrier designated by the vendee is of the same legal effect as a delivery to the vendee himself; if no particular route or carrier is indicated by the vendee, it is the duty of the vendor to ship the goods ordered "in a reasonable course of transit."
3. The fact that no bill of lading was sent to the vendee does not affect the right of the vendor to recover the price of the goods.
RODMAN, J., dissenting.
APPEAL from Buxton, J., at Spring Term, 1877, of HALIFAX.
The plaintiffs brought this action to recover the price of a certain amount of guano which they had sold to the defendant. The material facts found by the referee, to whom the case was referred, are these: The plaintiffs manufacture and deal in guano in the city of Baltimore, and the defendant was engaged in farming near Edwards Ferry on the Roanoke River in North Carolina, and one Shields was the plaintiffs' agent for selling guano in said State. Early in April, 1873, the defendant asked said agent if he could fill an order for guano in time for the planting season of that year, who replied that he did not know, but if the defendant would take the chances of getting it in time, he would order it of the plaintiffs. The defendant told him to order it "anyway," and have it consigned to him (defendant) at Edwards Ferry. Accordingly, on the 12th of the same month the plaintiffs delivered the article ordered to the Baltimore Steam Packet Company, at Baltimore, consigned to the defendant at Edwards Ferry. The guano was, shortly (314) thereafter and in a reasonable course of transit, put on board the steamer "Silver Wave," then making regular trips on the Roanoke River, and in such trips passing said Edwards Ferry. At the time of the shipment the plaintiffs forwarded a bill of lading to said agent, but neither one presented the bill of lading to the defendant, who had no knowledge of the shipment until the following November, when payment for the guano was demanded. There was no warehouse at said Ferry, and what became of the guano does not appear, except that it was landed at some point on said river. The defendant never received it, and bought other guano in its place. Some time after the shipment — whether before or after the purchase of other guano, does not appear — the defendant paid said agent the freight on said guano. He was in the habit of paying large freight bills, and having confidence in the agent, he paid without much scrutiny. In regard to the quantity, quality, price, and name of the article, the order of the defendant was definite, and in these respects it was strictly complied with by the plaintiffs.
Thereupon the referee held that the defendant was not liable, and his Honor sustained the ruling, and the plaintiffs appealed.
Spier Whitaker for plaintiffs.
T. N. Hill for defendant.
Upon these facts it is our opinion that as soon as the order or proposition of the defendant was accepted, the contract was complete without further notice, and that it was fully performed on the part of the plaintiffs when they delivered the guano in good condition to the steamboat company, (315) when the title vested immediately in the defendant, and that consequently the plaintiffs ought to recover. This rule would be varied by a different understanding or agreement, for there is no rule of law to prevent the parties in cases like the present from making whatever bargain they please; and if it appears from the conduct of the parties or from circumstances that either party intended otherwise, then the effect would be the same. If it appeared that the defendant intended no contract until notice of acceptance of his proposition, or that he intended to assume no liability until the plaintiffs delivered the goods at the place designated, or that the vendor intended to control the goods and to retain the jus disponendi by sending a bill of lading to his agent or to a third person, with instructions not to deliver until the goods are paid for, then in such cases the title would not vest in the purchaser by the delivery to the carrier. The authorities are numerous, both English and American, to the effect that a delivery of goods to a carrier designated by the purchaser is of the same legal effect as a delivery to a purchaser himself, and that it is not necessary that he should employ the carrier personally, or by some agent other than the vendor. If, however, no particular route or carrier is indicated by the vendee, then it is the duty of the vendor to ship the goods "in a reasonable course of transit," which was done here, and when he has so delivered the goods to the carrier, his duty is discharged, and if the goods are lost, the purchaser is bound to pay him the price. If it appear that plaintiffs failed to comply with instructions in any material respect, or that any act or instruction of theirs contributed in any way to the nondelivery at the proper destination, then they could not recover; but it is manifest that the nondelivery was not owing to the negligence of the plaintiffs, and was probably occasioned by the fault of the carrier. It is contended, however, that the plaintiffs cannot recover, because they sent no bill of lading to the defendant. (316) This fact does not alter the contract. Such bills as the indicia of property are useful and convenient for transfers and other commercial purposes, but they are not essential in contracts of sale and delivery like the present; and it is to be noted that a bill of lading was sent to the agent through whom the defendant's order came to plaintiffs. The principle of this case was decided in Crook v. Cowan, 64 N.C. 743.
There is error. Judgment will be entered in this Court in favor of the plaintiffs for the debt and costs.