13 F. 22 | U.S. Cir. Ct. | 1882
(charging jury.) The agreement contemplated “cured meat.” The meaning of this term is to he interpreted by you according to the understanding of the trade at Memphis, if there be any difference between that term as it is used there and at Atchison, Kansas. The agreement was made at Memphis between a purchaser and a broker acting as the agent of the seller, although he may have been the agent of both parties. The meat was to be used in the Memphis market, and I think there can be no doubt that it was to be “cured” according to the understanding of the parties at Memphis. fBut if the meat was properly cured, and spoiled in transit, where does the loss fall ? I think there is no reasonable doubt, under the decisions of the supreme court of the United States, which I shall call to your attention, that if you find, as there is no dispute, that this meat was not to be delivered to the purchasers until they paid the draft attached to the bill of lading, the ownership remained in the sellers and at their risk until the draft was paid on the third day of November. After that payment, the ownership changed to the purchasers, and the meat was at their risk.
If, therefore, the meat left Kansas properly cured according to the contract, and was spoiled while in transit prior to the third day of November, the loss is that of the seller; but if afterwards, on the purchaser. Dows v. Nat. Exchange Bank, 91 U. S. 619; The Merrimack, 8 Cranch, 317; The Venus, Id. 253; The Frances, Id. 359; S. C. 9 Cranch, 183; The St. Joze Indiano, 1 Wheat. 208. However this point may be found under the English authorities cited by counsel, or the state cases relied on, I am of opinion that the supreme court has ruled the principle as I have indicated. They cite approvingly the sections of Mr. Benjamin’s work on Sales, where he criticises and seeks to reconcile the apparent conflict in the cases, and I have no hesitancy in ruling according to the principle thus established, although the cases may not be exactly precedents for this one. The older cases arose under the law of prize, and it was estab
