Arnold v. Prout , 51 N.H. 587 ( 1872 )

Bellows, C. J.

There was no express direction in the order to send the goods by the railroad, but it is fairly.to be inferred, from the direction to make a car-load of the ale, that the defendant expected it would be so sent.

It was delivered to the carrier at Ogdensburg directed to the defendant at Manchester, and he received it and paid the freight.

This is evidence, and, unless controlled, conclusive evidence that the ale was properly delivered to the carrier in New York, and is, I think, equivalent to proof of an express order so to send it. So far, then, this appears, without being obliged to rely upon the plaintiffs’ own testimony ; and in confirmation of it, one of the plaintiffs testifies that the ale was to be delivered to the carrier at Ogdensburg. and that there was no agreement as to delivery in Manchester. The law on this subject is extremely well settled, that if a tradesman order goods to be sent by a carrier, although no particular carrier be named, the moment they are delivered to the carrier it operates as a delivery to the purchaser, and the property at once vests in him, — the carrier in fact being considered as the agent of the buyer and not of the seller. Dutton v. Solomonson, 3 Bos. & Pul. 584; Cooke v. Ludlow, 2 B. & P. New Rep. 118. And this doctrine has been fully recognized in New Hampshire. Woolsey v. Bailey, 27 N. H. 217; Smith v. Smith, ibid 252, and cases cited; Garland v. Lane, 46 N. H. 248, and cases cited; Sortwell v. Hughes, 1 Curtis U. S. C. C. 244.

Unless, then, there is evidence tending to control this proof that the goods were to be delivered to a carrier, it must be taken that the sale was completed in New York; and we think there is no such evidence.

Evidence that the plaintiffs warranted the ale to be reasonably fit for transportation, and to be good for a reasonable time, lias no such tendency. An agreement, that if the ale was destroyed in the transit the plaintiff's should bear the loss, would be evidence tending to prove that the place of delivery was at Manchester ; but it would be otherwise if the agreement was that the plaintiffs should bear the loss if destroyed in the transit through their own fault; and such is the substance of the testimony on that point.

Nor do we think that the testimony of the defendant, that the ale he had before bought of the plaintiffs had always been delivered to him in Manchester, tends to prove that, by the usual course of dealing between the parties, Manchester was the place of delivery. If it did, it should have been left to the jury to find whether, in this case, the ale was to be delivered there. But it will be observed that the defendant does not testify that Manchester was the agreed place of delivery, or anything equivalent to it; but what he does say may fairly be understood to mean that the goods were received from the railroad there, the defendant paying the freight from Ogdensburg. Unless the case can be so amended as to show that more was meant, we think it cannot be understood as tending to prove a course of dealing that made Manchester the place of delivery.

The counsel for the defendant are right in their position that if there was any evidence, though slight, tending to rebut the position that the delivery was in New York, the question ought to have been submitted to the jury ; but we think there was not, and there must be

Judgment on the verdiet.