Isbell-Brown Co. v. Stevens Grocer Co.

Hart, J., ('after stating the facts). (1) It is the settled law in this State that as soon as a vendor delivers [.■roperty to a carrier consigned to a vendee, the title passes to the vendee and for any delay in shipment, the vendee’s remedy is against the carrier. Brownfield v. Dudley E. Jones Co., 98 Ark. 495; Roberts Cotton Oil Co. v. Grady, 105 Ark. 53; Templeton v. Equitable Mfg. Co., 79 Ark. 456. In the last mentioned case, Templeton & Adams, merchants in Arkansas, purchased some jewelry from the Equitable Manufacturing Company. There was ian unreasonable delay in the arrival of part of the goods purchased and on that account the purchasers refused to accept any of the goods. The seller sued for the contract price of the goods, and recovered' judgment. The judgment was 'affirmed because the goods were consigned to Templeton & Adams, and the court held that the title to the goods vested in them when they were delivered at the shipping point to the railroad company properly consigned to them, pursuant to the contract of purchase. (2) Here, the facts are essentially different. The goods were consigned to “shipper’s order,” at Newport, Arkansas, and .the order contáined this clause: “Terms: Draft with B. L. payable upon arrival and examination of goods. ’’ As between seller and purchaser, 'it is a general rule that the 'title to goods shipped under a bill of lading in favor of the seller or his agent with a draft attached does not pass to the buyer until hé has complied with the conditions. See case notes to 5 Am. & Eng. Ann. Cases, 263, and 2 L. R. A. (N. S.) 79. The rule has been recognized by this court. See Arkansas Southern Railway Company v. German National Bank, 77 Ark. 482; Josey v. State, 88 Ark. 270; Midland Valley Rd. Co. v. J. A. Fay & Eagan Co., 89 Ark. 342; American Jobbing Assn. v. Wesson, 92 Ark. 287. In the ease before ns the seller consigned the goods to itself at Newport, and sent the bill of lading with draft attached to a Newport bank with directions that the bill of lading was not to be delivered to the purchaser until the payment by it of the draft. In this way the bill of lading was used as a symbol of the property to express the seller’s intention as to the conditions upon which the property should be delivered. (3) According to the testimony of the defendant, there was an unreasonable delay in the arrival of the car of beans at Newport, and on this account, it refused to accept the beans or pay the draft. Hence there was no absolute sale of the goods, and .the goods were at the risk of the consignor until delivered to the consignee. We think this is the effect of our previous decisions. In the case of Templeton v. Equitable Manufacturing Company, to which reference has been made above, the court said that while a bill of lading is both a receipt 'and a contract, and is á muniment of title, yet it had no influence in that case, as the goods were not sent to shipper’s order, but were consigned directly to Templeton & Adams. Continuing, the court said the case turned simply on whether the show case was delivered to Templeton & Adams at Alliance-, Ohio, when there delivered to the common carrier, and held that it was because the contract stipulated for an.absolute sale of the goods. For this reason, a recovery of the purchase price of the goods was sustained. So, too, in the case of the American Jobbing Association v. Wesson, supra, the court held that where goods are consigned to shipper’s order, there is no delivery at the time and point of shipment, and that the contract is executory. In the case of Gibson v. Inman Packet Co., 111 Ark. 521, it was held that the delivery of goods by the seller to a common carrier consigned to the purchaser is in effect a delivery to the consignee, and that on this account the consignor has no right of action for the loss or injury of the goods. The court said that the rule had its origin in the theory that the parties by such delivery intended to pass title to the property, but where the contrary intention is shown, the rule does not apply. It follows that the seller having consigned the goods to shipper’s order, and having neither endorsed nor transferred the bill of lading to the buyer, and the draft being made payable ¡after the arrival and examination of the goods, the latter did not have any title to the goods until the conditions prescribed by the seller had been complied with by it; and the goods having been delayed in transportation .an ¡unreasonable length of time. By the express language of the contract, the terms were “draft with B. L. payable upon arrival and examination of the goods.” Under this provision of the contract, the buyer had a right to rescind the contract of sale, and the remedy . of the seller or consignor should have been against the railroad company for its failure to deliver the goods within a reasonable time. Cochran v. Chetopa Mill & Elevator Co., 88 Ark. 343. We also think this rule follows from the principles of law announced in our own cases cited above. To the same effect, see 3 Hutchinson on Carriers (3 ed.), § 1318; Meohem on Sales, vol. 2, § 1195. The judgment will be affirmed.