Adams Express Co. v. McDonough

SMITH, J. McDonough, the plaintiff below, at the request of Kearns, delivered to the Adams Express Co. in this city, two pieces of marble, to be duly transmitted by such company, C. O. D., to Kearns, at Mt. Sterling, Ky. Both were destroyed [575] while being so transported, and Kearns refused to receive or pay for them, and McDonough brought his action to recover the damages sustained by him, by the failure of the defendant to carry them safely. Robert Ramsey, for plaintiff in error. Matthews & Cleveland, for defendant in error. The only question presented is, whether he is entitled to maintain the action, The trial judge refused to charge the jury as requested by defendant’s counsel, that he was not. We think the action of the court was right. The title to the property did not pass to Kearns on the delivery to the carrier, but such title, and the jus disponendi, remained in McDonough until the goods should be received by Kearns from the carrier, and paid for by him. (See 23 Fed. Rep. 134; 59 Ind. 268; 3 Col. 184; 55 Ill. 140. Benjamin on Sales, sec. 382.) The judgment will be affirmed, with costs.