I agree with Mr. Justice FELLOWS that the delivery of a C. O. D. shipment to a carrier is a delivery to the buyer, and passes title to him. The title thus acquired, however, does not confer upon him the right to possession of the goods shipped until payment be made to the carrier. It is the duty of the carrier under its contract with the shipper to *Page 629 collect on delivery. Without proof to the contrary, it will be presumed that it performed its duty in that respect.
It is said that, had Armour Company sued defendant, "it would have made its case by proving the contract of sale and delivery of the goods to the carrier." Proof of the contract would have disclosed that under one of its provisions delivery to the defendant should not be made without payment. It appearing from plaintiff's proofs that delivery had been made, payment will be presumed and the burden cast on plaintiff to rebut this presumption.
"When the property has been delivered to the consignee, a presumption arises that the freight has been paid." 10 C. J. p. 449.
"From the fact that the property was delivered to plaintiffs at the point of destination, it is to be presumed that they paid the freight charges thereon. If they did not, the defendant should have made it appear." Shea v. Railway Co.,63 Minn. 228 (65 N.W. 458).
The judgment is affirmed.
McDONALD, C.J., and CLARK, BIRD, and MOORE, JJ., concurred with SHARPE, J. WIEST, J., did not sit. *Page 630
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