25 tons lump.

73 tons steamboat.

98

Captain to tend guy."

The contract price of $4.10 a ton was the price of the coal delivered at Burlington. If the defendant paid freight pursuant to the direction in the bill of lading, the freight paid was to be deducted from the contract price.

Responsibility for loss in transportation, in carriage by sea, has occasioned considerable discussion in the English courts. The rules on this subject are stated by Lord Cottenham in Dunlop v. Lambert, 6 Cl. & F. 600, 619, 620, 621, and by the Court of Queens' Bench and the Exchequer Chamber in the Calcutta Company v. De Mattos, 32 Law Jour. Q. B. 332; 33 Id. 214; and particularly by Mr. Justice Blackburn, whose opinion in that case is quoted at considerable length in 1 Benj. Sales (Corbin's ed.), 503, and more fully in Blackb. Sales (Blackstone ed.), *234.

It is sometimes stated, as a general rule, that delivery to the carrier is delivery to the consignee, and that the goods are to be carried to their destination at his risk. But an examination of the decisions to that effect will show that this doctrine prevails only where the contract of sale, as between the consignor and consignee, was concluded at the place of shipment, and the undertaking to ship was collateral to the contract of sale, as in Tregelles v. Sewell, 7 Hurlst. & N. 573. It will also be found that the rule, uniformly adopted in the line of decisions, is that the risk of loss in transportation depends upon the nature of the transaction, the terms of the contract and the intention of the parties. In Dunlop v. Lambert, Lord Cottenham said: "When the party undertaking to consign undertakes to deliver at a particular place, the property till it reaches that place, and is delivered according to the terms of contract, is at the risk of the consignor." In Calcutta Company v. De Mattos, Mr. Justice Blackburn said: "There is no rule of law to prevent the parties from making whatever bargain they please. If they use words in the contract showing that they intend that the goods shall be shipped by the person who is to supply them on terms that when shipped they shall be the consignee's property and at his risk, so that the vendor shall be paid for them whether they are delivered at the port of destination or not, this intention is effectual.

If the parties intend that the vendor shall not only deliver them to the carrier, but also undertake that they shall actually be delivered at their destination, and express such intention, this is also effectual. In such

a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser in consequence of the breach of the vendor's contract to deliver at the place of destination."

The De Mattos Case, above cited, was decided in the Queen's Bench by an equally divided court, and in the Exchequer Chamber there was a diversity of opinion among the judges. But on the question of law pertinent to this case there was entire unanimity of opinion among the judges in both courts. The contract of sale had been negotiated by correspondence, and the material facts were briefly these: De Mattos contracted to deliver the company one thousand tons of coals, delivered at Rangoon, alongside, etc., at forty-five shillings a ton-payment, one-half by bill at three months on handing over bill of lading and policy of insurance on the cargo to cover payment, and the balance in cash on delivery at Rangoon. De Mattos chartered a ship, and shipped on board eleven hundred and sixty-six tons of coal and delivered to the company the bill of lading and the policy of insurance, and the company paid the half of the invoice price. On the voyage the ship became disabled, and, in fact, the coals were not delivered under the contract. Cross suits were brought, the one by De Mattos to recover the unpaid contract price, the other by the company to recover back the money paid on the contract. The Queen's Bench (Cockburn, C. J., and Wightman, J.) decided that De Mattos could not recover the residue of the contract price, and that the company was entitled to recover back the money paid as damages arising from the breach of contract. Blackburn and Mellor, JJ., concurred in the view that De Mattos could not recover, but held that the company was not entitled to recover back the half contract price it paid, for the reason that, by their construction of the contract, the portion of money paid to De Mattos was to be absolutely his on handing over the policy and the bill of lading. In delivering his opinion, Cockburn, C. J., said: "In every contract of sale, there is, on the part of the vendor, an obligation not only to transfer the property in the thing sold, but also to deliver possession to the buyer. When and how that delivery of possession shall take place, whether in the interval the thing sold shall be at the risk of the buyer or seller, so that if it be lost without default on the part of the latter, he shall nevertheless be entitled to demand the price or to retain it if already paid, must depend on the agreement of the parties as expressed or to be gathered from the contract. If, by the terms of the contract, the seller engages to deliver the thing sold at a given place, and there be nothing to show that the thing sold was in the meantime to be at the risk of the buyer, the contract is not fulfilled by the seller unless he delivers it accordingly."

In the Exchequer Chamber the majority of the court concurred in the views of Blackburn and Mellor, JJ., in the company's case, by a divided court, but all the judges concurred in the judgment of the Queen's Bench, that De Mattos' action could not be maintained. It will be observed, that of the ten judges who sat in both courts, Cockburn, C. J., and Wightman, Blackburn, and Mellor, JJ., in the Queen's Bench, and Erle, C. J., Willes, J., Channell, B., and Williams, J., held that the property in the coals passed to the company by force of those terms of the contract in relation to insurance of the cargo and the transfer of the policy and the delivery of the bill of lading, but that the vendor was nevertheless debarred from recovering the unpaid contract price as a consequence of his failure to deliver the coals according to contract.

It, was undisputed in the case now before the court, and, in fact, was conceded by the plaintiff's counsel, that delivery of the coal by the plaintiff, at Burlington, at his own expense, was a material term in the contract of sale. Under a contract of this sort, delivery of the coal on board the barge was delivery to the master as the plaintiff's bailee or agent, to perform for him the act of delivery in execution of his contract. 1 Benj. Sales (Corbin's ed.), # 566. Meanwhile, and until delivery was consummated in such a manner as to be effectual as between vendor and purchaser, the coal was at the plaintiff's risk.

On the main issue, which the learned judge declared to be the question whose loss was the coal which sank, his instruction was that this issue would depend upon whether the sale had been completed before the loss occurred; that where parties have bargained, the one that he will sell and the other that he will buy, the duty rests upon the seller to deliver the article in pursuance of the agreement he has made, and that to complete the sale there must be an acceptance by the purchaser of the article which he purchased, in accordance with that agreement; that when that has been done "the sale is completed, and any loss after that time falls upon the man who bought. I mean any loss which is the result of no wrongful or intentional negligence of the parties."

The court also instructed the jury that, if there was an acceptance by the defendant, then the position of the captain became changed, and his duty as the agent of the plaintiff was at an end. And this question was left to the jury upon the acts and conduct of the defendant's servants before they stopped work that night, with the instruction that if the jury should determine from the testimony "that the defendant or his employers so acted that they recognized that that coal was there at their disposal, under their dominion, within their power, and that they so acted as to show that they were dealing with it as if it were McNeal's from those acts you may determine that there was an acceptance of the coal as being the coal which had been bought under that bargain."

!

The transaction between the parties was an order for a certain quantity of coal, part lump coal and part steamboat coal, of an approved quality. It was in effect a contract of sale by sample. On such a sale of goods it is a condition implied by law that the buyer shall have a fair opportunity, by examining the goods, to satisfy himself that they are in accordance with the contract. 2 Benj. Sales (Corbin's ed.) #910, 1025, 1042; Isherwood v. Whitmore, 11 Mees. & W. 347; Startup v. McDonald, 6 Man. & G. 593; Croninger v. Crocker, 62 N. Y. 152. And under a shipment of goods by a carrier the consignee is entitled to inspect and examine the goods to ascertain whether they correspond with the invoice, and to a reasonable time within which to receive and remove the goods. For that purpose a reasonable time within usual business hours must be allowed, and during that period the liability of the carrier as carrier remains undischarged. Bradstreet v. Heron, Abb. Adm. 209, 214; Salmon Falls Manufacturing Co. v. The Bark Tangier, 1 Cliff, 396; Dibble v. Morgan, 1 Wood, 406; The Tybee, Id. 358, 363; The Braque Idd. v. Kemball, 8 Ben. Adm. Pr. 297; 5 Myer Fed. Dec., "Carriers," **802, 803, 846, 852, 1009; The Eddy, 5 Wall. 481, 493; Price v. Powell, 3 Comst. 322; Dunham v. B. & A. R. R. Co., 46 Hun, 245; Miller v. Steam Navigation Co., 6 Seld. 431; Hedges v. H. R. R. Co., 6 Robt. 119; reversed in Court of Appeals, but not on this point, 49 N. Y. 223; Moses v. B. & M. R. Co., 32 N. H. 523; Graves v. The H. & N. Y., Steamboat Co., 38 Conn. 143, 152; Richardson v. Goddard, 23 How. 28, 39; Bourne v. Gatliffe, 3 Man. & G. 643, 687; s. c. 11 Cl. & F. 45, 70; 3 Lew. Annot, R. R. & Corp. Rep. 54; note to Columbus & Western R. R. Co. v. Luddem.

The acts done by the defendant's servants before they quit work were of a twofold character. First. In directing the barge to be laid alongside of the wharf for unloading. The captain made the boat fast to the wharf and remained in charge during the night. The designation by the defendant of his wharf as the place for unloading, was an act in performance of the defendant's duty as consignee to provide a place for the discharge of the cargo. Second. In the preparation for unloading. The barge was laid alongside the float about ten minutes before six. The buckets were lowered down upon the barge, and possibly a small quantity of coal was unloaded. The hands quit work at six, and replaced the buckets on the wharf. In these acts there was no evidence of an acceptance of the entire cargo, nor of a discharge of the carrier from his responsibility. Under the rules of law I have stated, the defendant was entitled to a reasonable opportunity to unload the entire cargo for examination, to ascertain whether the coal corresponded with his order and had arrived in good condition. By law he was secured these rights

without discharging the liability of the carrier. Even if the goods had been accepted so as to pass title as between vendor and purchaser, the defendant, under the plaintiff's undertaking to deliver them at Burlington, still had a right to a reasonable time to unload them under the plaintiff's contract to transport and deliver the goods.

For affirmance-None.

For reversal-The Chancellor, Chief Justice, Depur, Dixon, Knapp, Magie, Reed, Van Syckel, Brown, Clement, Smith. 11.

A CONTRACT FOR MAKING A SET OF FALSE TEETH IS FOR GOODS SOLD AND DELIVERED, AND NOT FOR

LABOR PERFORMED

LEE V. GRIFFIN

1 Best & Smith, 272 (1861)

Declaration against the defendant, as the executor of one Frances P., for goods bargained and sold, goods sold and delivered, and for work and labor done and materials provided by the plaintiff as a surgeon dentist for the said Frances P.

Plea, that the said Frances P. never was indebted as alleged.

The actin was brought to recover the sum of £21 for two sets of artificial teeth ordered by the deceased.

At the trial, before Crompt n, J., at the sittings for Middlesex after Michaelmas term, 1860, it was proved by the plaintiff that he had, in pursuance of an order from the deceased, prepared a model of her mouth, and made two sets of artificial teeth; as soon as they were ready he wrote a letter to the deceased, requesting her to appoint a day when he could see her for the purpose of fitting them. To this communication the deceased replied as follows:

My dear Sir, I regret, after your kind effort to oblige me, my health will prevent my taking advantage of the early day. I fear I may not be able for some days. Yours, etc.,

FRANCES P.

Shortly after writing the above letter Frances P. died.

In Hilary term following, a rule nisi having been obtained accordingly, Crompton, J. I think that this rule ought to be made absolute. On the second point I am of the same opinion as I was at the trial. There is not any sufficient memorandum in writing of a contract to satisfy the statute of frauds.