Woolsey v. Bailey

27 N.H. 217 | Superior Court of New Hampshire | 1853

Gilchrist, C. J.

The defendants caused an order to be sent to the plaintiff for the liquors, and they were accordingly forwarded from New York. The ordinary course of business is to deliver the articles to the carrier without a special order to that effect. As soon as they were ordered the plaintiff would be authorized to send them on in the ordinary mode, by the common carrier. Before railroads were in operation, and before it was the custom to transport goods by them as a matter of course, perhaps it might have been necessary, in order to place the goods at the risk of the Consignee, to direct them to be sent by a carrier.

In the case of Dutton v. Solomonson, 3 B. & P. 582, Lord Alvanly said, it appeared to him “ to be a proposition as well settled as any in the law, that if a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier, it operates as a delivery to the purchaser; the whole property immediately vests in him; he alone can bring an action for any injury done to the goods; and if any accident happen to the goods, it is at his risk. The only exception to the purchaser’s right over the goods is, that the vendor, in case of the former becoming insolvent, may stop them in transitu.”

Where goods are purchased in pursuance of orders, the delivery on board the ship is a delivery to the merchant who ordered them, the property is vested by that act, and he has no election to accept or reject them. The Mary & Susan, 1 Wheat. 25.

But if a shipper have general discretionary orders to ship goods, the shipment will remain at his own risk, unless at the time of shipment, by some overt unequivocal act, he designates or appropriates the shipment to his correspondent. The Francis, 2 Gall. 391.

That “unequivocal act” was performed here, for the articles were marked “ Bailey & Greeley, Nashville, N. H.”

In the ordinary course of mercantile transactions a delivery to a ship master is a delivery to the consignee. The Francis, 9 Cranch 183; Gassett v. Godfrey, 6 Foster’s Rep. 415.

Judgment for the plaintiff.