Wheelhouse v. Parr , 141 Mass. 593 ( 1886 )

Devens, J.

When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or, when no agreement is made or direction 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 other 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. Whiting v. Farrand, 1 Conn. 60. Quimby v. Carr, 7 Allen, 417. Finn v. Clark, 10 Allen, 479, and 12 Allen, 522. Downer v. Thompson, 2 Hill, (N. Y.) 137. Foster v. Rockwell, 104 Mass. 167. Odell v. Boston & Maine Railroad, 109 Mass. 50. Wigton v. Bowley, 130 Mass. 252.

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. Mclver, 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. Mclver, 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. Mclver. 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 in* surance 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. & 0. Mclver, with instructions in conformity with the directions of the defendant; and, had the matter ended there, so far as any directions to D. & C. Mclver 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 transportation of them had commenced, the plaintiff 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. Mclver, after the goods had reached them, inquiring whether they were to keep the goods “for our steamer 14th inst., or ship by tlie Glamorgan,” ordered them to be shipped by the steamer arriving out first, presumably the steamer which D. & C.- Mclver believed would be the first to arrive. The Glamorgan was not a steamer of any line of which D. & 0. Mclver were owners or agents, and in no way answers the description of “ their steamer ” as applied to D. & C. Mclver. By neglecting to limit the authority of D. & C. Mclver 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 plaintiff, D. & C. Mclver 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.

Judgment for the defendant.