Biow Co. v. Cohen , 99 Vt. 78 ( 1925 )

I regret exceedingly that I am unable to concur with the result reached by my Associates. The court below says that "under these facts and circumstances, the question before the court was whether or not the delivery of the goods by the defendant to the Express Company was a delivery to the plaintiff." This is a finding of facts, and it held as a matter of law that "the delivery of the goods directed to the plaintiff as hereinbefore stated, to the express company and the taking of said receipt was not a delivery to the plaintiff." The sole reason why it was not a "delivery to the plaintiff" in accordance with the contract is stated to be that it was directed as stated, that is, there was another address on the package, otherwise it must be treated as a good delivery. Such was the claim of the plaintiff.

The case is put by the plaintiff in his brief upon the sole ground that "the return of the goods has never been performed, * * for, if the goods are misdirected, a delivery to the carrier is not a good delivery." Otherwise the delivery is unquestioned by plaintiff. See No. 171, Acts 1921, § 19, rule 3.

By the "facts and circumstances" referred to, the court has found the fact to be, that "the return of the goods was in accordance with an established practice between the plaintiff and defendant." Such must be taken to be the contract. The place of return and mode of transportation in accord with the "established practice" between them was, of course, known and understood by the parties, and the return was actually made in accordance therewith. Where the mode of transportation in return is agreed upon, or where no mode is agreed upon for that matter, and the party under obligation to return adopts a mode of transportation, justified by the usage of trade, the delivery is complete when the goods are placed in the hands of the carrier properly consigned. Gottlieb v. Rinaldo, 78 Ark. 123, 93 S.W. 650, 6 L.R.A. (N.S.) 273. So it is held that when the buyer and seller live at a distance from each other and the article is shipped in the first instance to the buyer by carrier, the buyer fully performs his duty as to return by delivery of the article to a responsible carrier such as the one used in the first instance, properly consigned. Especially must this be so when the carrier was designated by the established practice between the parties. That it was properly consigned and accepted for transportation is not now questioned. No. 171, Acts 1921, § 46, and § 19, rule 3.

On the facts, as I understand them, I cannot escape the conclusion that the express company was the agent of the plaintiff designated by the parties to receive the goods for transportation. Thus the other markings are unimportant.

The delivery to the carrier designated has the same legal effect as the delivery to the party. United States v. Andrews,207 U.S. 229, 240, 52 L. ed. 185, 28 Sup. Ct. 100. Manifestly the same rule applies to the buyer who is to make return as applies to the seller. The rule, as to the seller, is established inMurray v. Morris, 91 Vt. 541, 102 A. 99; No. 171, Acts 1921, § 46.

The bill of lading was a contract (Pollard v. Vinton,105 U.S. 7, 26 L. ed. 998) which bound the express company to make delivery to the plaintiff (G.L. 3072), and made the company liable to the plaintiff (G.L. 3074) and excludes the defendant from control over them.

I discover no ground for supposing that the plaintiff would not undertake to pay the transportation charges both ways or that the defendant did not pay them. No such claim is made by either party. Not a word is found in the record about them, and such an inference, it seems to me, ought not to be drawn without some fact or circumstance on which it may rest. Temple Bros. v.Munett, 97 Vt. 395, 123 A. 431, as I understand it, does not go to that extent. Moreover, as I view the language of the Court, it excludes such an inference.