Baker v. Bourcicault , 1 Daly 23 ( 1860 )

By the Court.

Daly, F. J.

The defendant informed the plaintiffs that he would send back the amount of their hill by return of post, or the Express Company might collect it, at their option. The plaintiffs sent the box containing the cards to the Express Company, with directions to collect the bill on delivery. It is to he implied from such a direction that no credit had been given, and that the goods were to be paid for on delivery. The direction was understood by the Express Company as an instruction to them not to deliver the goods unless the bill was paid. The agent of the Express Company, who received the box and gave a receipt for it, testified that when they receive goods in that way, they do not deliver them unless the bill is paid. The receipt was for a box and a bill, and had written upon it, in the handwriting of the witness, the initials C. O. D., the meaning of which, he testified, was, “ collect on delivery.”

When goods .are sent in this way, to be paid for in cash,"payment and delivery are simultaneous acts, and though the properiy be delivered, no title passes, unless it is apparent from the circumstances under which the delivery was made, that ihe vendor meant to trust to the ability and readiness of the vendee to perform his agreement, and did not intend to insist upon strict payment as a condition precedent to the passing of the title. Unless immediate payment is thus waived, the vendor may, by an action for a wrongful detention, reclaim the property, as his title in it is not divested until payment.

This rule, the soundness of which has been questioned per Story, J. in Connyer v. Ennis, 2 Mason, 236, is now settled to be the law in this State, (Russell v. Minor, 22 Wend. 659 ; Lupin v. Marie, 6 id. 77 ; Chapman v. Lathrop, 6 Cow. 115,; Keeler v. Field, 1 Paige, 312 ; Haggerty v. Palmer, 6 John. C. R. 437; Palmer v. Hand, 13 Johns. R. 434) and it is decisive upon the question arising in this case.

There is nothing to show that the plaintiffs intended to waive payment as a condition precedent to the transfer of the title in the goods to the defendant, but on the contrary, the circumstances of the case, I think, repel such a presumption. The defendant left it at their option whether he should send back the amount of their bill by return of post, or whether it should be collected by the Express Company. They chose the latter, and directed the Express Company to collect it upon delivery. This was certainly not indicating any intention to trust to the ability and readiness of the defendant—but if any tiling is inferrable from it, it is the contrary. The Express Company understood it as a direction to them not to deliver unless the cash was paid; and had the goods reached Mew Orleans, they would have kept them as the property of the plaintiffs. The Express Company would-have had no authority to deliver the goods relying upon the ability'of the defendant, and waiving payment—or, if they had delivered the box to him, to enable him to examine the contents, to see if his order had been properly executed, they, or certainly the plaintiffs, could have reclaimed it, if the defendant had failed to pay the bill when it was demanded. In Goodall v. Skilton, (2 H. Bl. 316), the plaintiff agreed to sell a quantity of wool to the defendant. Earnest was paid, rendering the contract valid under the statute of frauds. The wool was packed in the defendant’s sacks anil left upon the plaintiff’s premises, the defendant agreeing to send his wagon for it in a few days. The defendant did not take the wool, and the plaintiff brought an

portion for goods sold and delivered; delivered; but as it that appeared appeared that t .e plaintiff had told the defendant’s servant, while he was -ir.'jjiged in weighing and packing the wool, upon the latter’s proposing to fix the time when the wagon should come, that ‘-e wool should not go off his premises until he had the money r..-’ it, the Court held that the action would not lie, the plain‘.iff having retained his right over the wool, and there being ° v *-■* ' © rz, right to it in the defendant. The numerous cases cited by the respondent, (People, v. Haynes, 14 Wend. 546 ; Dutton v. Solomonson, 3 Bos. & Pul. 582 ; Cooke v. Ludlow, 5 id. 119 ; Vale v. Bayle, Cowp. 294; Studdy v. Saunders, 5 B. & C. 628; Tarling v. Baxter, 6 id. 360 ; Richardson v. Dunn, 1 T. & D. 417; King v. Meredith, 2 Camp. 639) merely establish the general principle, that when goods are ordered to be sent by a carrier, a delivery to the carrier operates osa delivery to the p -chaser, in whom the property immediately vests, subject to t -c vendor’s right of stoppage in transitu, and the goods, in the v, arse of their transit, are at the risk of the purchaser. But every general rule has its qualifications. In none of these ca-.cs does it appear that the goods were to ho paid for in cash upon delivery, and that makes a very material difference, as shows, unless the contrary is indicated, that the property is )-'A to pass until payment has been made. Up to the time when payment and delivery are to he simultaneous acts, the contract is in its nature executory, and the title to the propertyU in the vendor. Benedict v. Field, 16 N. Y. 596. It kes no difference that the goods have been sent by a partzzPar carrier named by the vendee, if the carrier is instruct-off ly the vendor that the goods are to be paid for on clelivIn such a case the carrier becomes the agent of the vend ,r, and has a claim upon him for the expense of the carriage pj.'I safe keeping of the goods, if the vendee refuse to pay on w.;.7f,ry. Such was the relation of the parties in this suit, v-'; -.-jl the box was lost by the loss of the vessel in which it was rd-Aped, on her way to 2sew Orleans. The title to the goods bad no;-, passed to the defendant, and the judgment of. the Court below was erroneous.

1 ■idgineni reversed. '

ihiTOx, J. concurred.

ik-.ADT, J. concurred.