Hunter v. Randolph

• Decision Date: 02 April 1901
• Citation: Hunter v. Randolph, 128 N.C. 91, 38 S.E. 288 (N.C. 1901)
• Court: North Carolina Supreme Court
• Parties: HUNTER et al. v. RANDOLPH.

38 S.E. 288

128 N.C. 91

HUNTER et al.

v.RANDOLPH.

Supreme Court of North Carolina.

April 2, 1901.

SALES—DELIVERY TO CARRIER—DESTRUCTION OF GOODS—LIABILITY OF BUYER—BILL OF LADING—INSTRUCTIONS.

1. Where goods are delivered by the seller to a common carrier to be transported to the buyer, and are destroyed while in possession of the carrier, the fact that the seller did not send the buyer a bill of lading, or provide him with any means to collect the value of the goods from the carrier, is not a defense to an action for the price of the goods, since the title passes with delivery to the carrier, and the seller no longer has any interest in or control over the property.

2. In an action against a buyer for the price of goods destroyed while in the hands of a carrier, it was error to refuse to instruct the jury that "as soon as an order for goods is accepted by the seller the. contract is complete, without further notice to the buyer, and such contract is fully performed on the part of the seller by the delivery of the goods in good condition to the proper carrier"; that "a delivery to a proper carrier is of the same legal effect as a delivery to the vendee himself"; and that "the fact that no bill of lading was sent to the buyer does not affect the right of the seller to recover the price of the goods."

Appeal from superior court, Lenoir county; Allen, Judge.

Action by Hunter & Sims against C. T. Randolph. From a judgment in favor of defendant, plaintiffs appeal. Reversed, Y. T. Ormand, for appellants.

COOK, J. The defendant purchased through their salesman certain wheels from the plaintiffs. Upon receipt of the order, plaintiffs delivered the wheels to the proper common carrier in Richmond, where plaintiffs resided and carried on their business, and took bill of lading for same, and sent to defendant an Invoice of the goods. Upon arrival of the wheels in Kinston, to which place they were shipped by defendant's order, they were burned, while in possession of the common carrier, and before delivery to vendee. This action was brought by plaintiffs to recover against the vendee the purchase price.

It is a well-settled principle that when a vendor delivers the goods to the carrier, consigned to the vendee, both title and possession pass from vendor and vest in the vendee; the common carrier becoming the agent of the vendee. Ober v. Smith, 78 N. C. 313; Gwyn v. Railroad Co., 85 N. C. 429; Crook v. Cowan, 64 N. C. 743. And the vendor has no further interest in or control over the goods thus shipped, in the absence of an agreement of the parties varying this rule, or in case of stoppage in transitu in eases where its principles apply. The defendant resisted payment upon the grounds that the wheels were not his, as he had received none, and, further, that the plaintiffs failed to send him the bill of lading, without which the carrier's agent refused to recognize his claim for the value of the goods. There is no dispute as to the amount claimed.

Upon the trial the plaintiffs requested the court to give the...