Levy v. Radkay , 233 Mass. 29 ( 1919 )

Pierce, J.

This is an action of contract brought by the seller to recover from the buyer the price of goods ordered from samples shown at the buyer’s store.

The evidence warranted the finding of the presiding judge, “that the defendant directed the plaintiff to ship the merchandise in suit by Mahoney’s Express, and that the defendant was to pay the express charges for transportation.” The judge was not bound to believe the testimony of the defendant that the goods were to be delivered to the defendant at his store in Hyde Park. Nor was he required to rule that the order sent by the salesman, “Send to I. Radkay, Hyde Park Ave. . . . ,” constituted a special or implied contract that the title to the goods should not pass until delivery to the buyer at Hyde Park. St. 1908, c. 237, § 19, Rule 5, § 43. The evidence warranted a finding that the plaintiff selected and packed the goods as ordered, and delivered them for transmission to the- defendant to Mahoney’s Express, the carrier or bailee named by the defendant for that purpose. St. 1908, c. 237, § 19, Rule 4 (2). The goods were destroyed by fire while in the possession of Mahoney’s Express.

The request to rule that "Upon the whole evidence the plaintiff cannot recover,” could not have been given rightly. The judge by his refusal to rule as requested must be taken to have found that there was no agreement that the title should not pass until delivery at the place of business of the defendant, and to have ruled as he did rule “ that the title to the merchandise passed to the defendant upon delivery to Mahoney.” Twitchell-Champlin Co. v. Radovsky, 207 Mass. 72. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275.

The finding of fact necessarily made by the judge in refusing the first request, also necessitated a refusal to give rulings numbered 2, 3, 4 and 5.

The sixth request, “The goods were sold by sample and selected and shipped by the seller, and the buyer had the right of inspection and verification before acceptance. There was no acceptance until he had exercised this right-or waived it,” is sound as a general statement of the law governing sales by sample, but is inapplicable, and could not have been given when the goods were lost by fire or otherwise, and, as here, in pursuance of the terms of the contract they were to be and were in fact delivered to a carrier chosen by ther purchaser. Williston on Sales, § 473, and cases cited. After the passing of title the risk of loss and other incidents of ownership fall upon the buyer. Murphy v. Sagola Lumber Co. 125 Wis. 363, 368. McNeal v. Braun, 24 Vroom, 617, 620, et seq. Skinner v. Griffiths & Sons, 80 Wash. 291, 293.

The order of the Appellate Division, “Report dismissed,” must be affirmed.

So ordered.