Nos. 20,218—(62) | Minn. | Apr 27, 1917
Plaintiff is an oyster packer at Baltimore. Defendant is a restaurant keeper in St. Paul. In 1914, defendant wrote plaintiff: “Ship to Trocke Cafe, at St. Paul, Minn. At Once, Trial Order.”
On October 27 defendant wrote plaintiff: “Please ship us one 5 gal. can of Extra Sel. to arrive Monday and one 5 gal. can Thursday each week.”
Pursuant to this order plaintiff made shipments by express from time to time and defendant made payments generally on account from time to time. A dispute arose as to the number of shipments made. Plaintiff claimed it had made shipments to the total of $364.15. Defendant claimed that the shipments totaled $344.35. This amount defendant paid. This action was brought to recover the difference of $19.80 which plaintiff claims to be due. The trial court found for plaintiff; defendant appeals.
This is a case of an executory contract to sell goods to be thereafter ascertained. When the title passes the vendee becomes liable to pay the price. Title passes when goods conforming to the contract are appropriated to the contract. Appropriation is the act of both parties, but one party may, by agreement express or implied, authorize the other to act for him in making the appropriation. The nature of the transaction between these parties was such that it was clearly contemplated that the seller should make the appropriation. See Hoover v. Maher, 51 Minn. 269" court="Minn." date_filed="1892-11-12" href="https://app.midpage.ai/document/hoover-v-maher-7967638?utm_source=webapp" opinion_id="7967638">51 Minn. 269, 53 N. W. 646.
If the parties reside in different cities, and shipment of the goods is contemplated, then delivery takes place when the goods are selected and delivered to the carrier for shipment consigned to the buyer. Kessler v. Smith, 42 Minn. 494" court="Minn." date_filed="1890-02-10" href="https://app.midpage.ai/document/kessler-v-smith-7966370?utm_source=webapp" opinion_id="7966370">42 Minn. 494, 44 N. W. 794; Schwartz v. Church of the Holy Cross, 60 Minn. 183" court="Minn." date_filed="1895-02-01" href="https://app.midpage.ai/document/schwartz-v-church-of-holy-cross-7968727?utm_source=webapp" opinion_id="7968727">60 Minn. 183, 62 N. W. 266.
Applying these principles, it is clear that the title passed when the goods were delivered by plaintiff to the express company for shipment to defendant.
It is true the defendant had the right to inspect the goods on arrival, and if they never arrived, he had no opportunity to exercise this right, but this did not prevent title from passing. The right of inspection is only a right to examine the goods to see whether they conform to the contract. If they do so conform, the title is held to have passed as of the date of shipment. Williston, Sales, § 473; Brigham v. Hibbard, 28 Or. 386" court="Or." date_filed="1896-01-27" href="https://app.midpage.ai/document/brigham-v-hibbard-6896986?utm_source=webapp" opinion_id="6896986">28 Ore. 386, 43 Pac. 383; Orcutt v. Nelson, 1 Gray (Mass.) 536, 543; Mobile F. & T. Co. v. McGuire, supra. The purchaser has, by the making of the contract, committed himself in advance to the acceptance of goods. The fact that the carrier does not carry the goods through, so as to give the buyer an opportunity to inspect, is no fault of the seller. The carrier may be liable for his failure. The carrier is the buyer’s agent. As between seller and buyer, the goods while in transit are at the risk of the buyer. The fact that they are lost in transit does not affect the passage of title. Kelsea v. Ramsey Mnfg. Co. 55 N. J. Law, 320, 26 A. 907" court="N.J." date_filed="1893-03-15" href="https://app.midpage.ai/document/kelsea-v-ramsey--gore-manufacturing-co-8270805?utm_source=webapp" opinion_id="8270805">26 Atl. 907, 22 L.R.A. 415.
Order offirmed.