
    R. P. ANDREWS & CO. v. THE UNITED STATES.
    [No. 22937.
    Decided December 18, 1905.]
    
      On the Proofs.
    
    A contract for paper to be furnished to the Philippine Public Printing Office at Manila provides that the paper be inspected by the Insular Division in Washington before shipment, the paper to be “ †. o. 1)., Manila-, at the price at which, the same is now furnished to the Government Printing Office, 'Washington, 11. 0., plus freight from Tffeio YorJc ” to Manila, “ payment to he made 'from Philippine funds on invoice verification at Manila.” A -quantity of paper is ordered and inspected in Washington and delivered, pursuant to the order, on board a designated transport. The claimant pays the freight to Manila. The paper is badly damaged by water on the voyage. A board of survey on arrival condemns the paper, and it is sold by the Philippine Commission.
    I. The general rule is that title passes on delivery of the goods to the vendee, if nothing more remains to be done by the vendor. II. Where the vendor, pursuant to the terms of the contract and to tlie vendee’s orders, delivered goods on a designated vessel and prepaid the freight, and nothing more remained to be done by him, the title passed, and the goods on the voyage were at the risk of the vendee.
    
      The Reporters' statement of the case:
    After the findings of the court had been filed and judgment entered in this case the parties agreed upon a restatement of the facts, the purpose being to present more fully, to the Supreme Court some questions in the case which were not presented on the trial to this court. It is these new amended findings of fact which are set forth herein. The Per Guriam opinion of the court does not extend to the new questions presented by these amended findings:
    I. The claimant company is a body corporate, duly created, organized, and existing under the laws of Virginia, and doing business in the District of Columbia as a wholesale dealer and contractor in paper and stationery; it has at all times borne true allegiance to the Government of the United States; it is the sole owner of the claim embraced in this suit, and no transfer or assignment thereof, or of any interest therein, has ever been made by it.
    
      II. On and prior to August 17, 1901, claimant was furnishing and supplying defendant divers papers and stationery, under contract, for use in various of its departments; and thereupon defendant solicited claimant to furnish and supply, for use in its Public Printing Office at Manila, P. I., certain papers of described kinds, as follows:
    . “ CIRCULAR D.
    “ War DEPARTMENT, OpEICE OE THE SECRETARY,
    “ Division oe Insular. Aeeairs,
    “ 'Washington, D. (7., August 17,1901.
    
    “ E. P. Andrews & Co.,
    “ 627 Louisiana Avenue, Washington, D. 0.
    
    “ Gentlemen : Under instructions from the Chief of Division of Insular Affairs, I write you as follows :
    “ Will you furnish for the use of the Philippine Public Printing Office, Manila, P. I., articles called for in the inclosures 1 and 2, f. o. b., Manila, at the price at which the same is now furnished to the Government Printing Office, Washington, D. C., plus freight from New York; payment to be made from Philippine funds on invoice verification at Manila, P. I.
    “ Inspection at Insular Division, where samples are to be sent.
    “ When can supplies be shipped from port of departure ?
    "■ Bills for supplies to be submitted, in duplicate, to the Chief of Division of Insular Affairs, for verification of prices at Government Printing Office rates.
    
      “ Copies of bills of lading from New York to be submitted, in duplicate, to Chief of Division of Insular Affairs for verification.
    “ Very respectfully,
    “ John S. Leech,
    “ /Supt. of Phil. Publie Printing OfftceP
    
    III. In reply, claimant, on August 28, 1901, submitted proposal as follows:
    “ Washington, D. 0., August 28, 1901.
    
    
      “ Ci-iiee oe Division oe Insular Aeeairs,
    “ War Department, Oity.
    
    “ Dear Sir : Eeplying to your favor of the 17th instant, Circular D, w'e beg to advise that we will furnish the different lots of paper called for in enclosures 1 and 2, which accompanied said circular, at the prices for which the same is now being furnished to the Government Printing Office, Washington, D. C., plus freight rate from New York to Manila, P. I., except lots * * *. All other lots mentioned we will, as stated above, furnish at the same prices that the same class of goods are being furnished to the Government Printing Office, plus, as stated above, the freight from New York to Manila, P. I. Payment to be made from Philippine funds on invoice verification at Manila, P. I. Inspection at Insular Division, where samples are to be sent. Bills for supplies to be submitted in duplicate to the Chief of Division of. Insular Affairs for verification of prices at Government Printing Office rates. Copies of bills lading from New York to be submitted in duplicate to Chief of Division of Insular Affairs for verification.
    “ We can have the goods ready for shipment October 1st to November 15th.
    “Very truly, yours,
    “ R. P. Andrews AND Co. (Inc.).
    “ R. P. Andrews, Pres’tP
    
    IV. On the same date (August 28, 1901) the defendants wrote the claimants as follows:
    “ Circular E.
    “ War Department, Oeeice oé the Secretary,
    “ Division oe Insular Aeeairs,
    
      “ Washington, D. 0., August 28,1901.
    
    “ E. P. Andrews & Co.,
    “ 627 Louisiana Avenue, Washington, D. 0.
    
    “'Gentlemen': Please deliver f. o. b. Manila, P.'I. (via Suez Canal), the following:
    “ Articles called for in inclqsures 1 and 2.
    “ To be shipped between October 20 and November 1, 1901.
    “ Quality of goods furnished will be considered in making future orders.
    “ Please acknowledge receipt of ‘ this . circular by return mail.
    “ To be properly packed for export shipment.
    “.Ship care.Barber & Co., steamship agents, pier B, Pennsylvania clocks, Jersey City, N. J. (See note inclosed:)
    “ Marked as follows:
    “ No. — Governor W. H. Taft, Manila, P. I.
    “Contents, — ; weight, — lbs.
    “ For Philippine public printing plant.
    
      “As per your agreement in your letter elated August 28, 1901, now on file in this office.
    “ Very respectfully,
    “ ClaeeNce R. EdwaRds,
    “ Chief of Division of Insular Affairs.”
    [Inclosure 1.]
    
      It. P. Andrews & Go., 627 La. ave., Washington, D. G.
    
    
      
    
    [Inclosure 2.]
    ❖ it ❖ • * ^ it it
    " NOTE.
    “(Care Barber & Co., steamship agents, pier B, Pennsylvania docks, Jersey City, N. J.)
    “A special arrangement lias been made so that after f. o. b. delivery, as above, at Jersey City, the freight rate for the transportation of these supplies ancl equipment of the Manila printing office will not be higher than $11.05 per ton (dead weight), and possibly less. Rate for measurement freight to be made on a correspondingly low basis, in accordance with the space occupied. Therefore the Philippine government will, upon invoice verification at Manila, reimburse, you for the cost of this ocean shipment.”
    V. Prior to filling said order, claimant received from defendant further instructions and directions as to shipment, as follows:
    NOTE.
    “(Care Barber & Co., East Central pier, Brooklyn, N. Y.)
    “A special arrangement has been made so that after f. o. b. delivery, as above, at Brooklyn, the freight rate for the transportation of these supplies and equipment of the Manila printing office will not be higher than $11.05 per ton (dead weight), and possibly less. Eate for measurement freight to be made on a correspondingly low basis, in accordance Avith the space occupied. Therefore the Philippine government will, upon invoice verification at Manila, reimburse you for the cost of this ocean shipment.”
    VI. Claimant accepted said order, as follows:
    “ Washington, D. C., August 30,1901.
    
    “ Colonel CLARENCE E. EDWARDS,
    
      11 Chief of Div. of Insular Affairs,
    
    “ War Department, City.
    
    
      “ Dear Sir: We beg to acknowledge receipt of your order, Circular E, with inclosures 1 and 2, for paper for Philippine public plant, and desire to state that we will comply with all the provisions contained therein.
    “ Thanking you for same, we are, very truly, yours,
    
      “ E. P. Andrews & Co. (Inc.).
    “ E. P. Andrews, Pres.”
    
    VII. In compliance with said order and directions, claimant supplied 500 reams of linen map paper of the kind and quality ordered at the agreed contract price of $8,081.75; the same being properly packed for export shipment, marked “ Gov. W. H. Taft, Manila, P. I.,” and claimant prepaid freight charge thereon, New York to Manila, P. I., $196.85, and $1 for clearance papers.
    ■' VIII. Said shipment ivas consigned by claimant to “ Gov. W. H. Taft, Manila, P. I.,” in accordance with the instructions and directions of defendant, supra; and bills of lading, in triplicate, were issued accordingly, delivery of goods to be made to said consignee or his assigns.
    IX. Claimant delivered duplicate bills of lading covering said shipment to the Chief of Division of Insular Affairs, War Department, Washington, D. C.
    X. Barber & Co., steamship agents as above, forwarded said consignment of paper per steamship Indrasamha, which vessel thereafter arrived at the port of Singapore with a portion of her cargo (including the above consignment) badly damaged by water. A jiart 0f said consignment, 90 reams, was -condemned by a board of survey and sold in Singapore, and the remaining 410 reams reboxed and forwarded to Manila; but because of its damaged condition Governor Taft, the consignee, refused to accept it, and it was subsequently surveyed, condemned, and sold. None of the proceeds of such sales, however, were received by claimant or defendant, the same apparently having been exhausted- in charges in connection with survey, condemnation, storage, and sale of said paper.
    XI. Claimant did not insure the consignment; nor has it ever received any part of the agreed purchase price for said paper, or for the freight prepaid by it at the request of defendant as above.
    
      Mr. A. -A. TIoeliLing, jr., for the claimant:'
    The expression “ f. o. b.,” in its ordinary acceptance and use, means simply “ free on board ” — that is, that the expense of carriage and delivery of a consignment at a given point ■shall be paid by the consignor. (Ex parte Ohina Glay Go., 11 Ch. Div., 565; Stock v. Ingles, 12 Q. B. Div., 5l3; Brown v. Hare, 3 H. & N.-, 484; Silherman v. Clark, 96 N. Y., 522.)
    The written contract in this case absolutely negatives the contention that any obligation rested upon claimant to make delivery of the consignment f. o. b. Manila. The mere fact that claimant, at the request and for the. convenience of defendant, prepaid the freight from New York to Manila can not alter the fact that defendant itself assumed and agreed to pay such freight (by reimbursing claimant the amount so paid). The legal obligation of claimant was exactly and accurately expressed in the two notes of instruction as to shipment, above referred to, namely, “ /. o. b. delivery, as above, at Jersey City,” and “ /. o. b. delivery, as above, at Brooklyn.” (A., 35).
    
    Ordinarily, and in the absence of anything appearing to the contrary, delivery of goods by a consignor to a common carrier is prima facie a delivery to the consignee. (Dutton v. Solomonson, 3 Bos. & Pul., 582; Dawes v. Peck, 8 T. E., 330; Dunlap v. Lambert, 6 Clark & Fin., 600; Prince v. Railroad, Go., 101 Mass., 542; Eelsea v. Ramsey, 55 N. J., 320; Orcott v. Nelson, 1 Gray, 536.)
    Where, however, the purchaser designates the mode of conveyance and a particular carrier, the latter becomes the agent of the purchaser, and delivery to such carrier constitutes in law a delivery to the purchaser. (Vale v. Bayle, Cowp., 294; Dawes v. Peclc, 8 T. R., 330; Dunlap v. Lambert, 6 Clark & Fin., 600; Mary and Susan, 1 Wheat., 26, 39; Putnam v. Tillotson, 13 Mete., 517; Merchant v. Ghipman, 4 Allen, 362; Spencer v. Hale, 30 Vt., 314; Stanton v. Eager, 33 Mass., 467; Magruder v. Gage, 33 Md., 344.)
    Testing the present case by the rule of decision just referred to: it will be observed that the purchaser (defendant) directed claimant to make delivery of the consignment to Barber & Co., steamship agents, East Central pier, Brooklyn, N. Y., and it agreed to pay (reimburse) the freight charge.
    Such delivery, made in pursuance of express direction given by the purchaser, constitutes a legal delivery to the purchaser.
    And, finally, it made such legal delivery to defendant beyond all controversy or question by further directing the goods to be marked and shipped to its (defendant’s) designated consignee, “ Governor W. FI. Taft, Manila, P. I.,” and the duplicate bills of lading to be sent by claimant to defendant, at its Division of Insular Affairs, War Department, Washington, D. C.; with all of which, as so instructed and directed, the claimant complied.
    These facts conclusively establish a complete legal delivery of the goods to defendant.
    Thus, in Evans v. Martlett (1 Ld. Raymond, 271) :
    “ If goods by bill of lading are consigned to A, A is the owner, and must bring the action against the master of the ship if they are lost.”
    Again, in Brown v. Hodgson (2 Camp., 36) Lord Ellen-borough:
    “ I can recognize no property but that recognized by the bill of lading.”
    • In Griffith v. Indledew (6 S. & R., 429) Tilghman, C. J., stated:
    “After all these decisions, it would seem strange that there should be any doubt of the efficacy of the bill of lading in passing the legal property to the consignee.”
    
      The bill of lading, as expressed in the decisions, is the symbol of the property and represents it. (Straus v. Wessel, 30 Ohio St., 211; Forbes v. Railroad Go., 133 Mass., 154; Gates v. Railroad Go., 42 Neb., 379; Railroad Go. v. Johnson, 45 id., 57; Refining Go. v. Refining Go., 104 Ky., 559; Railroad Go. v. Stern, 119 Pa. St., 24; Gonrad v. Insurance Go., 1 Pet., 386; Gibson v. Stevens, 8 How., 384.)
    In Stanton v. Eager (33 Mass., 467) it was held that where the consignor took out the bill of lading in the name of the consignee, the latter having designated the carrier to be employed, title passed to the consignee immediately upon delivery of the goods to the carrier, even where the bill of lading was sent by the consignor to his own agent.
    So, in the case of Straus v. Wessel (30 Ohio St., 211), the bill of lading was made out in the name of the consignee, but had not been delivered. The court, nevertheless, held that title passed to the consignee upon delivery to the carrier.
    
      Mr. Charles F. Kineheloe (with whonrwas Mr. Assistant Attorney-General Pradt) for the defendants:
    The rule and the cases cited are all right, but they have no application here, as they apply only to cases in which the delivery to the carrier was at the point of delivery called for by the contract or where the contract did not specify the point of delivery; whereas in the case at bar the delivery to the carrier was at New York City, while the point of delivery called for by the contract was Manila.
    As to the matters of the designation of the' carrier and the consignee, these, like all the other provisions of the contract, were not post-contract requirements, but were provisions of the contract itself. The defendants said to the claimant, in substance, “ Will you deliver this paper at Manila, f. o. b., to be properly packed for export shipment, and shipped in care Barber & Co. (via Suez Canal) to Governor W. H. Taft, payment to be made from the Philippine funds on invoice verification at Manila; bills to be submitted in duplicate to the chief of the Division of Insular Affairs for verification of prices, and copies of bills of lading from New York to be submitted in duplicate to the chief of said division? ” And the claimant said, “ We will.”
    
      It is tbus clear tbat all of these requirements constituted a part of the agreement between the parties and can not be héld to vary or affect the agreement that the paper was to be delivered by the claimant at Manila.
    In regard to the consignment of the goods to Governor Taft, which is cited by counsel in support of his contention that delivery to defendants was effected at New York, the fact of property being consigned to the vendee affords no proof that the shipment is at the vendee’s risk, as the consignee is as often the mere agent of the shipper as he is the owner of the shipment. (2 Greenleaf, sec. 380; Benjamin on Sales, 282-289; Dunlop v. Lambert, 6 C. & F., 621.)
    As to receipt of bill of lading by the Insular Bureau, the contract did not call for the bill of lading itself, but merely for copies thereof; and besides, receipt of the bill of lading itself by the vendee is not conclusive proof of transfer of title and imposition upon the vendee the risk of transportation. (.Dunlop v. Lambert, 6 C. & F., 620-621; Moahes v. Nicolson, 19 C. B., 290; Shepard v. Iiarrison, 4 Q. B. L. B., 196; Oastle v. Playford, 5 Ex. L. B., 165; Gongar v. Railroad Co., 17 Wis., 477; Abbott on Shipping, pp. 326, 331, 337.)
    It is further contended by counsel for claimant that under the provisions of the contract the freight charges from New York to Manila were not a part of the purchase jirice of the paper, but was merely prepaid by the claimant acting for the defendants, by whom the claimant was afterwards reimbursed therefor; and that this alleged payment of the freight by the defendants is evidence of deliver of the paper to the defendants when it was delivered to the carrier in New York.
    This contention, however, is groundless, as by the contract the purchase price of the paper was to be its value at Government Printing Office rates plus the freight charges from New York to Manila. The value of the paper at Government Printing Office rates was $3,087.75, and the entire freight charges from New York to Manila were $197.35, making the contract price of the paper $3,285.10.
    It is certainly clear that the freight charges were a part of the contract price of the goods, and further that Colonel Edwards’s idea in contracting in this way was to carry out Ms purpose oí making Manila the point of delivery and the contractor responsible for the arrival of the goods and their delivery there in good condition.
    We submit that the contract must be construed to call for the delivery of the paper to the defendants at Manila in good and serviceable condition; and that as only a part of it was delivered there, and that in a damaged condition, wholly unfit for use, the claimant has no right of recovery.
    As to the contract requiring that the paper be delivered in a good and serviceable condition, even if there had been'no express condition to this effect, this is one of the implied conditions of such a contract of sale. An executory contract of sale carries with it an obligation that the property shall be merchantable, or in the condition contracted for. (Benjamin on Sales, sec. 645; McGlung v. Kelly, 21 Iowa, 508, and cases therein cited.)
    It is a well-established rule of law that the risk of damage or loss of property, the .subject of contract of sale, follows the title to the property — that is, that when property is damaged or destroyed the loss falls upon' the party in whom the property is. (Grant v. United States, 7 C. Cls. E., 53; McConihe v. R. R. Go., 20 N. Y., 496; Magruder v. Gage, 33 Md., 348; Taylor v. Gole, 111 Mass., 363; Pacific Iron 1Yorks v. L. I. R. R., 62 N. Y., 272; Bloyd v. PollocJc, 27 W. Va., 75.)
    It is equally well established by the decisions of the courts that in contracts for sale of property title ‘does not pass until delivery according to contract. (Magruder v. Gage, 33 Md., 348; Blackwood v. Gutting, 76 Cal., 212; Lester v. East, 49 Inch, 588; Pacific Iron TVorles v. L. I. R. R., 62 N. Y., 272; Berry v. Waterman, 71 Miss., 497; Bloyd v. Pollock, 27 W. Va., 75; Buckingham, v. Bake, 112 Fed. Eep., 258; Gapehart v. Furman, 101 Ala., 446; Hopkins v. Davis, 23 N. Y., App. Div., 235; Brewing Go. v. De France, 91 Iowa, 108; Moakes v. Nicolson, 19 C. B., 290; Gongar v. R. R. Go., 17 Wis., 477; Woodruff v. United States, S. C., 10 C. Cls. B., 181.)
    In the case at bar the paper, in question had not, at the time of its being damaged, been delivered to the defendants according to the contract; hence title had not passed to defendants, and the risk was therefore then in the claimant.
    It is also a well-settled rule of law7 that title does not pass while anything remains to be done which is required by the contract, either by the vendor or the vendee, or by a third party. (Kitson Mch. Go. v. Holden, 74 Vt., 104; MoFadden 'v. Harrison, 128 Ala., 221; Platter v. Acker, 13 Ind.-App., 417; McOlung v. Kelly, 21 Iowa, 508; Fuller v. Bean, 34 N. TL, 301; Hopkins v. Davis, 23 N. Y., App. Div., 235; Smith v. Wisconsin Go., 114 Wis., 151.)
    In the case at bar not only had delivery not yet been made according to the contract, but invoice verification had yet, according to the contract, to be effected before payment could become due.
    The risk of damage or loss of goods the subject of contract of sale is, prior to delivery, in him who undertakes to deliver them. (Amer. c& Eng. Encyc. of Law, 2d. ed., p. 726; Benjamin on Sales, secs. 330 and 693; Dunlop v. Lambert, 6 C. & F., 620-621; Taylor v. Gole, 111 Mass., 363; Pacific Iron Works v. L. I. R. R. Go., 62 N. Y., 272; Magruder v. Go,ge, 34 Md., 348; Bloyd v. Pollock, 27 W. Va., 75.)
    As the delivery of the paper at Manila clearly devolved upon the claimant, the risks attendant upon such delivery were in the claimant company, and the damage sustained by the paper must be its loss, and not the loss of the defendants.
    In conclusion we will add that the contract price of the paper never became due, and for two reasons: First, the paper -was not delivered according to contract, and, second, payment, according to the contract, could become due only upon “invoice verification ” at Manila (or at most upon the claimant rendering invoice verification possible by delivery of all of the goods at Manila according to contract), winch was never effected, for the reason that only a part of the paper ever arrived at Manila, and that in an unserviceable condition. {Benjamin on Sales, sec. 690; Kitson Mch. Go. v. Holden, 74 Vt., 104; Hopkins v. Davis, 23 N. Y., App. Div., 235.)
   Per CuRiAM:

The contract in this case consists of the two letters, set forth in the preceding findings of August 17, 1901, and of August 28, 1901. It should be understood that the initials “ f. o. b. Manila ” in the first letter mean that the articles called for will be delivered free of freight at Manila, and that the words “ on invoice verfication at Manila ” in both letters mean that the public printing office in Manila is to have the opportunity of verifying the invoice by examining packages of goods before payment. ■

The goods in this country were to be inspected at the Insular Division in this country, where samples were to be sent. Bills for supplies were to be submitted in duplicate to the Bureau “ for verification of prices at Government Printing Office rates,” and “ bills of lading from New York to be submitted, in duplicate, to Chief of Division of Insular Affairs for verification.” The price was to be the price which the Government Printing Office' paid for similar goods “plus freight rate from New York to Manila.” The vendors were to'prepay the freight and add it to the Government Printing Office rate. The purchaser was to pay the total amount, which constituted, according to the contract, the price of the goods.

The general rule in such cases is that title passes on delivery of the goods to the carrier if nothing more remains to be done by the vendor. The claimants contend that nothing remained to be done by them; that their contract required them to submit samples for inspection to the Insular Bureau; to deliver the goods to a designated carrier, and prepay-the freight, all of which things they did. They also contend that “ invoice verification at Manila ” was not something to be done by the vendors to the goods, but something to be done concerning the invoice by the vendees, and consequently that the title passed when the goods were delivered on board the designated vessel and the freight paid; that the vendors had then no further control of the goods, and that they were then at the risk of the purchaser.

On the part of the defendants it is contended that something remained' to be done before the defendants should accept the goods, viz, that they should be reexamined in Manila, and that by the terms of the contract the defendants could not be required to make payment until that was done.

To this the claimants reply that the goods were carried to Manila on a designated vessel, as required by the contract; that the defendants did acquire thereby all that the contract assured to them, viz, the right and opportunity to open the packages and verify the invoice; that this is not the case of goods lost at sea (where the question raised by the defendants might be involved), but is simply the case of goods delivered and transported according to the very terms of the contract, whereby the defendants acquired possession of the goods and the opportunity to verify the invoice, and where they examined the goods and sold them in their damaged condition. If the contract had been according to the usage of merchants it would have been in form that the price of the goods should be at Government Printing Office vates, with a provision, distinct from the price, that the vendors should prepay the freight and charge it to the vendees. The defendants’ officers so understood it; for with their orders to ship goods and pay freight they expressly said, “ The Philippine government will, upon invoice verification at Manila, reimburse you for the cost of this ocean shipment.”

It is a question in this case whether this contract was anything more than the embodiment of ordinary commercial usage — whether the difference in form is one of substance.

The defendants’ officers, as consignee, also treated the goods as goods belonging to the Government by subjecting them to the condemnation of boards of survey and by selling them without seeking authority for so doing from the claimants and by neglecting-to account for the proceeds thereof.

The case is not as clear as is desirable, and the members of the court are not fully agreed in regard to it; but upon all the facts considered the judgment of the' court is that the claimants recover judgment in the sum of $3,285.10.

Howry, J., did not sit in this case and took no part in its decision.  