
    DUNCAN BUIE vs. BROWNE & DEROSSETT.
    An inspector of lumber &e. in the town of Wilmington, is, by the usage of trade in that town, the agent of both buyer and seller, and, by the same usage, it is the privilege of the purchaser to designate the place of delivery and the duty of the seller to deliver it there. Therefore, where lumber was placed with an inspector for inspection, and he was directed by the purchaser to deliver it on a particular wharf, and, by mistake he delivered it on another wharf, and especially when after such deposit the purchaser informed the seller he would not receive it there, and the property was af-terwards casually destroyed by fire, Held, that the seller was responsible for the loss, and the purchaser was not bound to pay him the price he had contracted to give.
    Appeal from the Superior Court of Law of New Hanover County, at tbe Spring Term, 1846, His Honor Judge Dick presiding.
    The action is brought to recover from the defendants the price of a quantity of lumber, sold by the plaintiff, as he alleges, to them, and which was burnt in the town of Wilmington. The plaintiff brought the lumber to the town of Wilmington, where the defendants reside, and offered it for sale to the defendant Derossett, who agreed to purchase it, if, when he saw it, it proved to be good. It is the custom, at that place, as proved by the witnesses, for the purchaser to direct where the lumber shall be delivered, and for the seller to deliver it there. Before delivery, it is required to be inspected, and when the inspector takes possession for that purpose, he is considered the agent of both parties; the inspection is at the expense of the purchaser. The inspector, Mr. Ashe, testified, that Mr. Derosset pointed out to him the place where the lumber was to be deposited, and he did deposit it there. A witness, who was present at the conversation between the inspector and the defendant, stated that Derosset directed the inspector to land the lumber on the wharf of Brown & Derosset, near the stern' of a ship then lying there ; that the ship was subsequently moved to Stow’s wharf, where the lumber was landed, and where it was burnt. If it had been placed on the wharf of the defendants, it would not have been burnt. After the lumber was landed, and before it was burnt, the defendants told the plaintiff’s agent for selling it and with whom the contract was made, that they would not take the lumber, unless it were put on their wharf. The inspector swore that he was employed by the plaintiff to deliver the lumber.
    The only controversy arising in the case, as presented to this Court, is as to the delivery. Upon that point, his Honor instructed the jury, “ that if the inspector had not landed the lumber at the place pointed out by Derossett, but by mistake, landed it at a different place, yet he was the agent of the defendants from the time he took possession of the lumber by direction of the defendants, for the purpose of landing and inspecting it, and the property vested in the defendants, and the inspector having by mistake landed it at a different place than that pointed out by the defendants, would not alter the case.”
    Under these instructions, the jury found a verdict for the plaintiff, and from the judgment thereon the defendants appealed.
    
      Warren Winslow, for the plaintiff.
    
      J. 11. Bryan, for the defendants.
   Nash, J.

In the opinion of the Court below, we do not concur. The different inspectors in the State are public officers, appointed by the Courts of pleas and quarter sessions of the several Counties where needed, and, except in the case of the inspectors of Wilmington, hold their offices during good behavior — they giving-bond and security for the faithful discharge of their duties, and taking an oath of office ; and a penalty is inflicted upon any one for acting as an inspector without being first qualified. For the purpose of inspection, then, the inspector is the officer of the law, and he is the agent of both parties by the usage of the trade of the town of Wilmington, after he takes possession. By the same custom, it is the privilege or right of the purchaser to designate the place of delivery, and the duty of the seller to deliver it there. This was a part of the contract between the parties. It is a right, highly important to the purchaser. Where, as in this case, he is the owner of a wharf, it saves him much risk, as well as expense, to have it delivered there. If deposited elsewhere, at the election of the vendor, his risk would be increased, not having the control of the premises and not being able to watch and guard it properly and with his own servants. If the lumber in this instance had beén landed upon the wharf of the defendants, it would not have been destroyed by the fire. But be this as it may, it was a part of the contract as assumed by the Judge, that the lumber should be landed at the wharf of the defendants. The inspector was an agent, vVith special authority to deliver and receive at a specified place. The variation here, for the reasons before given, was in a matter of substance and very material. And it was fully known to the plaintiff. The defendants never adopted the act of the inspector, when apprised of the place where the lumber was landed ; they informed Pipkin, the special agent of the plaintiff, that they would not take it, unless placed on their wharf. The Judge then erred in instructing the jury, that if the inspector had, by mistake, not landed the lumber at the place directed by the defendants, they were still bound by his delivery. And for this error there must be a new hearing of the cause before another jury.

Per Curiam. Judgment reversed and a venire de novo awarded.  