Magruder v. Gage

Stewart and Maulsby, J., dissented. They being of opinion that there was evidence in the cause which ought to have been submitted to the jury, tending to prove that “ the cargo of ice in controversy was shipped from Boston at the risk of the plaintiffs, and was not to be paid for ³⁵² by the defendants until tbe same should be delivered to them or their assigns,” and consequently that the Court erred in granting the plaintiffs7 fifth prayer, which concluded the case in favor of the plaintiffs — upon the finding by the jury of the facts therein enumerated. Robinson, J., delivered the opinion of the Court. The appellants, residents of Annapolis, wrote to the appellees, ice-dealers in Boston, to know upon what terms they would sell to them a cargo of ice, in answer to which they received the following reply. “For a cargo to be shipped before the 10th of July, we shall charge you $5, per ton, and will get the freight as low as possible.” By letter of July 1st, 1863, the appellants directed the appellees to send a cargo of one hundred and fifty tons, and authorized them to get the freight as low as possible.

On the 13th of July, the appellees wrote to the appellants, advising them of the shipment, enclosing account for same and the bill of lading. This letter with the inclosed papers was received by the appellants in due course of mail. By the bill of lading it appears that the ice was shipped in good order and ³⁴⁷ condition, on board of the schooner “ Bio,” lying in the port of Boston and bound for Annapolis, to be delivered in like good order and condition to the appellants or to their assigns, he or they paying the freight and accustomed average. The schooner encountered rough weather and was compelled to put into New York with damaged sails.

After refitting she resumed her voyage and reached Norfolk on the 18th of August, in a sinking condition. The remnant of her cargo was sold in Norfolk under the captain’s supervision, and the surplus arising from the proceeds of sale, after the payment of freight and charges, amounting to two hundred and twenty-two dollars, was handed over to the appellants and by them remitted to the appellees, who refused to receive the same. This is an action of contract brought by them against the appellants to recover the value of the cargo of ice. The main question in this appeal and one -which we think decisive of the case, arises upon the following prayer granted by the Court: “If the jury find from the evidence that the plaintiffs in 1863, were partners in trade and dealers in ice, under the name and firm of Addison, Gage & Co., in the city of Boston, Mass., and that the defendants were trading under the name of Magruder & Brother, in the city of Annapolis, on the 3d of June, in the year 1863, and as such firm wrote to the plaintiffs, the letter offered in evidence of that date and proved under the commission as Exhibit E, and that the plaintiffs in' reply thereto, wrote to the defendants the letter dated June 22d, proved under the commission as Exhibit H, and that on the 1st of July, the defendants addressed to the plaintiffs the letter returned with the commission and marked A, and that on the 6th of (Tuly, the plaintiffs wrote to the defendants the letter of that date marked B, and that these letters were received by the persons to whom they were respectively addressed, and that the plaintiffs did on the 11th of July, 1863, ship on board the schooner “Bio” one ³⁴⁸ hundred and fifty-one tons of ice, at and from the port of Boston to Annapolis, consigned to the defendants, and that the said schooner sailed on her said voyage on the 11th of July, 1863, and that the plaintiffs sent by the mail of the 13th of July, 1863, to the defendants the bill of lading and invoice of said shipment marked F and Gr, and that these were received by the defendants in due course of mail, and that the plaintiffs made no other agreement in reference to the sale and delivery of said ice, than is shown by the said letters, bill of lading and invoice, then the plaintiffs are entitled to recover the value thereof of said ice, after deducting any amount which the jury may find to have been paid to plaintiffs.” This prayer asserts as a proposition of law, that the facts therein stated, in the absence of any other agreement on the part of the plaintiffs in regard to the delivery of the ice, constituted a complete sale and delivery of the same to the defendants.

The question as to what acts are necessary to be performed by a vendor under an executory agreement for the sale of unspecified goods, in order to transfer the title to the vendee and subject him to the risk of the carriage, depends entirely upon the agreement either express or implied between the parties. If the vendor undertakes to make the delivery himself at a distant place, thus assuming the risk in the carriage, the carrier becomes the agent of the vendor, and the property will not pass until the delivery is actually made. On the other hand, if the goods are delivered to a carrier specially designated by the purchaser, he becomes the agent of the latter, and the title to the property as a general rule will pass the moment the goods are despatched. Should the contract of purchase be silent as to the person or mode by which the goods are to be sent, a delivery by the vendor to a common carrier in the usual and ordinary course of business, transfers •the property to the vendee.

Or, as Mr. Benjamin expresses it in his late Treatise on Sales, “where goods are delivered by ³⁴⁹ the vendor in pursuance of an order, to a common carrier for delivery to the buyer, the