By the Court,
Cole, J.
We think that the nonsuit in this case was improperly granted. The order for the salt, the price and the shipment by the plaintiffs to the defendant, being proven, made out, to say the least of it, a prima facie case for the plaintiffs. It is contended by the counsel for the defendant, that the contract established by the letters and telegraphic dispatch, required the plaintiffs to insure the salt for their own benefit, if lost; and that inasmuch as it was shown by the cross-examination of Spencer, the captain of the schooner Patton, upon which the salt was shipped; that the salt was lost in a storm on the way to Milwaukee; therefore, the defendant is not liable. We do not thus understand this contract, and the rights and liabili*157ties of tbe parties who made it. It seems to be the ordinary-case of sale and delivery of goods by the vendor to a master of a vessel to be carried to the purchaser. The salt was consigned in the bill of lading to the defendant, in pursuance of the order, to forward 1,500 bbls. to Milwaukee, to him there, and the delivery of the 350 bbls. on board the Patton, was a constructive delivery of so much to the defendant, and vested the property in him. We see nothing in the letters to warrant any other conclusion. The sale and delivery were unconditional, and the property became absolutely the defendant’s. And we think it quite apparent that such was the defendant’s own understanding of the agreement, else why should he request the plaintiffs to do the best they could on the freight contract. If the sale and delivery at Buffalo were not absolute, but it was at defendant’s election to receive the salt at Milwaukee or not, as they could agree upon terms, then the .matter of freight would not materially concern him. There is nothing in the circumstance that the price and terms of payment had not been expressly agreed upon, to vary the effect of the contract. The defendant had ordered salt before, without agreeing upon the price and terms of payment, as appears from the letter of November 13,1851. We suppose this is the almost invariable mode of doing business in this country. A merchant inland orders goods to be sent him from cities where he is accustomed to buy his stock, expecting, of course, in the absence of all special contracts, to pay the market price at the time they are ordered. Can you conclude that, because the .goods are forwarded with the bill, containing the price and terms of payment, that, therefore, the bargain is incomplete, and the safe, arrival of the goods at the risk of the vendor ? It is quite true that the previous transaction shows that the plaintiffs made a difference between a cash purchase and one upon time. They had given the defendant the choice of paying $1.06 per bbl. down, or $1.10 at 60 days. But - what can be inferred from that ? That the sale is a conditional one ? That the vendee may rescind the contract, refuse to accept the goods, because the privilege is given him of paying for them down or upon time'? Certainly not.'
But it is said that in this case the plaintiffs were ordered by the letter of the 17th of November, 185Í, to insure the salt for their *158own benefit, in case of loss, and that the course of trade between the parties showed that the plaintiffs were accustomed to insure, and that this circumstance in some unexplained manner affected the liability of the defendant, and rendered the sale a conditional one. The reasoning by which this position is attempted to be maintained, is not very clear or satisfactory. In the first place, it is very manifest, we think, that the salt was shipped upon the strength of, or in compliance with the telegraphic dispatch, and before the letter containing the order to insure came to hand. But suppose it otherwise, and that the letter of the 17th of November was received by the plaintiffs before the salt was shipped on the Patton; what then ? There was the order for the salt unconditional and unqualified. There, too, was the order to insure for their protection : “ I also telegraph to send me here 1,500 bbls. of salt, and if you cannot send 500 bbls. to Sheboygan, at, say 10c. more per bbl. than here, you need not send it; but if you can, send it. Do the best you can in freight contract, and advise me. Gfet it insured for your benefit, if lost. The 500 to Sheboygan is in addition to the 1,500 here, and if you cannot send to advantage that amount, send what you can. Ret me hear from you on receipt.” That is the language of the 'defendant, brief, but easily understood. Now, there is no proof that we áre able to find, that the plaintiffs did not insure the salt. If they did, and insured for their own benefit, then it was incumbent upon ¿he defendant to show that they had been paid for the salt by the money secured upon the policy. This was proper matter of defence. If, on the .contrary, they did not insure when it was their duty so to do, whether from express instructions ' given them, or from the general course of trade between the parties, then they have failed to discharge their duties as agents, have been guilty of breach of trust, and are liable for their negligence. But we do not feel called upon to decide now, whether that would be a matter of defence in this action by way of recoupment, or a distinct subject of inquiry in a special action on the case.
The judgment of the Circuit Court granting the nonsuit, is reversed with costs, and a venire facias de novo ordered.