David W. Biow Co. v. Cohen

*80 Powers, J. The plaintiff, doing business in New York City, delivered to the defendant át St. Albans, Vermont, a bill of goods under a “sale or return” contract. The defendant elected to return the goods; he delivered them to the express company in St. Albans in a package bearing the plaintiff’s New York business address, for transportation. The express company issued to him a receipt therefor, naming him as the consignor and the plaintiff as the consignee of the goods. It turned out that the package bore the address of another New York firm, to which the goods were actually delivered; and they have never been recovered or received by the plaintiff. This action of contract was brought in the St. Albans city court where the plaintiff had judgment for the value of the goods on findings of fact made by the court. The defendant alleges error. The nature of the contract was such that the title to the goods in question passed to the defendant upon their delivery to him, subject to be revested in the plaintiff by their return pursuant to the terms of the contract. No. 171, Acts of 1921, § 19, rule 3, (1). So the burden of proof on the question of a legally sufficient return of the goods was on the defendant. It was necessary for him to show such a return if he would avoid liability under the contract. And the judgment being against him, it was for him to present here a record affirmatively showing that, on the findings, it should have been in his favor. But whether this record shows a sufficient return to free the defendant from responsibility for the loss of the goods depends upon the question whether the return delivery was, under the contract, to be made at St. Albans or New York City. Rule 5 of the section of the Uniform Sales Act just cited, provides that if the contract requires the seller to deliver the goods to the buyer, or at a particular place, the property does not pass until the goods have been so delivered or reached the place agreed upon. So it should be held that when the buyer under a “sale or return” contract attempts to return the goods the title does not re-vest in the seller until they are delivered back to him or at the place agreed upon. If the record before us can reasonably be construed as requiring the defendant to return the goods to the plaintiff at New York, it is for us to give it that construction, for this would support the judgment, and every reasonable intendment is in favor of the judgment-; and it cannot be reversed unless all rea *81 sonable intendments are against it. Kelley v. Seward, 51 Vt. 436; In re Marlin’s Estate, 92 Vt. 362, 104 Atl. 100; Button v. Knight, 95 Vt. 381, 115 Atl. 499; Blodgett v. Lawrence, 90 Vt. 269, 97 Atl. 666; Vt. Marble Co. v. Eastman, 91 Vt. 425, 101 Atl. 151; Hitchcock v. Kennison, 95 Vt. 327, 115 Atl. 156. We think the record can be so construed. The findings do not expressly show where the return delivery of the goods was to be made, bnt when the contract is silent on the subject of delivery and no usage of trade to the contrary is shown, the seller’s place of business is the lawful place of delivery. Uniform Sales Act, § 43. So this plaintiff, ordinarily, would be under no obligation to pay transportation charges to St. Albans and make the delivery there; but having done so; as the findings show, it must be taken that this was according to the contract. Though the case is not within the statute, to make the law logical, we hold that when the contract is silent on the subject of the place of return, and no usage to the contrary is shown, the return must be made to the seller’s place of business. It was so held in White v. Perley, 15 Me. 470, and Johnson v. Curlee Clothing Co., 112 Okla. 220, 240 Pac. 632. The findings show that the return of the goods here in question was in accordance with a custom existing between the parties; but this we construe to mean no more than that the attempted return was according to such a custom; that is, that it had been customary for the returned goods to be sent to the plaintiff by express. It is quite unreasonable to suppose that the plaintiff would undertake, under such a contract, to pay transportation charges both ways. It follows that inasmuch as the return was to be in New York, the express company was the agent of the defendant; its mistake was his mistake; the title has never revested in the plaintiff, and the loss falls on the defendant. The ease is argued before us as though the mismarking of the package containing the goods determines where the loss falls; but this is no embarrassment to our affirming the judgment on other grounds. Temple Bros. v. Munett, 97 Vt. 395, 123 Atl. 431. Judgment affirmed.