
    ROBINSON & MARTIN v. HOUSTON & T. C. RY. CO.
    (Supreme Court of Texas.
    May 1, 1912.)
    1. Sales (§ 201) — Delivery and Acceptance — Tbansjter oe Title — Delivery to Carrier.
    Where a seller of goods delivers them to a carrier and forwards bill of lading with draft attached for collection, the title vests in the buyer without payment of the price or actual delivery.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 529-541; Dec. Dig. § 201.]
    2. Carriers (§• 76) — Carriers oe Goods— Delay in Transportation —Buyer’s Right oe Action.
    A buyer of goods in whom the title has vested, but who is not entitled to possession from the carrier until payment of the price, may maintain an action against the carrier for damages from delay in transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 256-271, 363; Dec. Dig. § 76.]
    Error to Court of . Civil Appeals of Sixth Supreme Judicial District.
    Action by Robinson & Martin against the Houston & Texas Central Railway Company. Judgment for plaintiffs was reversed by the Court of Civil Appeals (131 S. W. 444), and judgment rendered for defendant, and plaintiffs bring error.
    Reversed, and judgment of the district court affirmed.
    Davis & Thomason, of Gainesville, for plaintiffs in error. Garnett & Garnett, of Gainesville, and Baker, Botts, Parker & Gar-wood, of Houston, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

The facts upon which this suit was based are undisputed, and are stated by the Honorable Court of Civil Appeals as follows:

“Appellees [plaintiffs in error] were engaged in the business of running a cotton gin at Marietta, Oklahoma. On tbe 14th of December, 1906, their steam boiler got out of repair, which necessitated the purchase of a new one before they could resume business. On December 21, 1906, by telephone from Dallas, they ordered a boiler and attachment from an agent of the Erie Oity Iron Works at Houston. Just what the details of that contract were does not appear from the record, except by inference gathered from what the parties did in the subsequent transactions that followed. Paine, the agent of the Erie Oity Iron Works through whom the purchase was made, testified that he was directed by the appellees to ship the boiler provided he could do so at once; that on December 22d, the day following, he delivered to the Houston & Texas Central Railway Company the boiler and attachments, loaded •on one of its cars. He filled out the bill of lading himself and presented it to the appellant’s agent, by whom it was signed. The bill of lading was in the usual form, and •contained, among others, the following provisions: ‘And the Houston & Texas Central Railroad Company agrees to transport same from the station first above written to Gainesville, and there deliver in like good order to shipper’s order, notify (consignee), or his assigns, provided destination is on this company’s line, but if final destination is beyond this company’s line, then this company agrees to deliver the said shipment in like good order to its next connecting carrier for consignee’s áecount; in either event ■consignee agreeing to pay freight and charg>es as per margin.’ The freight to Gaines-ville was prepaid by Paine for the consignor, •and the bill of lading with a draft for the purchase price attached was sent to the First National Bank of Marietta, Oklahoma, with instructions to deliver it to the appel-lees upon their making payment of the draft. The goods were routed over the Houston & Texas Central Railway Company to Elgin, •and thence over the Missouri, Kansas & Texas Railway Company of Texas to Gaines-ville. There seems to have been some delay in the shipment occurring on both roads, which might be attributed to negligence. 'The car containing the boiler left Elgin about December 28th and arrived at Gainesville -on January 1st; but appellees received no notice of its arrival till January Sd. They ■accepted the boiler; and, upon the agreement of the bank holding the draft and bill of lading to protect the railway company, the ■agent of that company at Gainesville con•sented that appellees might take possession of the boiler and ship it to Marietta without ¡surrendering the bill of lading. This they did, and on the day following (January 4th) ■paid off the draft and received the bill of lading. There was evidence to support a finding by the jury that by reason of the ■delay in the transportation of this machin•ery the appellees had sustained damages resulting from their machinery remaining idle during the time.”

When the Erie City Iron Works sold the boiler to Robinson & Martin and delivered it to the railroad company at Houston, the title vested in the purchasers; neither liayment of the price nor actual delivery to the purchaser was necessary to pass the title. Boaz & Co. v. Schneider & Davis, 69 Tex. 128, 6 S. W. 402; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Irvin v. Edwards, 92 Tex. 258, 47 S. W. 719. The cases in our own reports are so numerous and definite to this proposition that we will not cite other authorities.

It is true that Robinson & Martin could not have taken possession of the boiler, without consent of the seller, until the price was paid, which right of possession by the Iron Works was asserted and protected by making the delivery conditioned upon payment of the price. The right of property passed to the purchaser when the particular boiler was designated; but the right of possession remained with the seller until the draft was paid.

The right of plaintiffs in error to recover the damages is alone before this court.

The learned judge who wrote the opinion in this case did not.distinguish between the title to the boiler and the possession of it; hence that court erred in reversing the judgment of the district court and rendering judgment for the railroad company.

It is ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed.  